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About Google Book Search Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web at |http: //books .google .com/I I //, ?^tdc y^^ 3 ^^jh ANCIENT LAW. LOITDOV PBTVTID BT 8POTCX8WOOD1 AVS CO. jrvw-fmsvT bqvabi >v t % ANCIENT LAW: ITS OONNBOTIOK' WITH THE EABLY HISTOBY 07 SOCIETY, AND ITS SELATION TO MODEBN IDEAS. BY HENEY SUMNER MAINE, BBA9XB OM JVSIBFBimXVCa AKD THl CTVIL LAW AX THS XZDDJJt TBKPU, AKD lOBVULT SBOIT7V nOVBISOB OV CBS CUJL LAW UT XHB 17VITBB8ITT OV OAJCBBIDOS. LONDON: JOHN MUEEAlY, albbmaele steeet. 1861. rA« rlffkt of ira*}k,ation U ruervett. 1 i I PREFACE. The chief object of the following pages is to indicate some of the earliest ideas of mankind, as they are reflected in Ancient Law, and to point out the rela- tion of those ideas to modem thought. Much of the inquiry attempted could not have been prosecuted with the slightest hope of a useful result if there had not existed a body of law, like that of the Romans, bearing in its earliest portions the traces of the most remote antiquity and supplying from its later rules the staple of the civil institutions by which modern society is even now controlled. The necessity of taking the Roman law as a typical system, has com- pelled the author to draw from it what may appear a disproportionate number of his illustrations ; but it has not been his intention to write a treatise on Ro- man jurisprudence, and he has as much as possible avoided all discussions which might give that appear- VI PREFACE. ance to his work. The space allotted in the Third and Fourth Chapters to certain philosophical theories of the Roman Jurisconsults, has been appropriated to them for two reasons. In the first place, those theo- ries appear to the author to have had a much wider and more permanent influence on the thought and action of the world than is usually supposed. Se- condly, they are believed to be the ultimate source of most of the views which have been prevalent, tiU quite recently, on the subjects treated of in this volume. It was impossible for the author to proceed far with his undertaking, without stating his opinion on the origin, meaning, and value of those specu- lations. H. S. M. London : January, 18G1. .k r CONTENTS. Crap. & Pagi I. Ancient Codes 1 n. Legal Fictions 21 III. Law of Nature and Equity 44 IV. The Modern History op the Law .of Nature . 73 V. Primitive Society and Ancient Law . . 113 VI. The Early History of Testamentary Succession . 171 VII. Ancient and Modern Ideas respecting Wills and Successions 215 Vni. The Early History of Property .... 244 IX. The Early History of Contract .... 304 X. The Eablt History of Delict and Crime . 367 f i "i i ' ERRATA. Page 6, line 9 from top, for " circumstanced " read " circumstance " 16, line 11 from bottom, for "attained" read "obtained" ANCIENT LAW. CHAPTER !• ANCIENT CODES. The most celebrated system of jurisprudence known to the worid begins, as it ends, with a Code. From the commencement to the close of its history, the ex- positors of Roman Law consistently employed language which implied that the body of their system rested on the Twelve Decemviral Tables, and therefore on a basis of written law. Except in one particular, no institutions anterior to the Twelve Tables were re- cognised at Rome. The theoretical descent of Roman jurisprudence from a code, the theoretical ascrip- tion of English law to inunemorial unwritten tradi- tion, were the chief reasons why the development of their system differed from the development of ours. B 2 ANCIENT CODES. chap, l Neither theory corresponded -exactly with the facts, but each produced consequences of the utmost im- portance. I need hardly say that the publication of the Twelve Tables is not the earliest point at which we can take up the history of law. The ancient Roman code belongs to a class of which almost every civilised nation in the world can show a sample, and which, so far as the Roman and Hellenic worlds were con- cemed, were largely diffused over them at epochs not widely distant from one another. They appeared under exceedingly similar circumstances, and were produced, to our knowledge, by very similar causes. Unquestionably, many jural phenomena lie behind these codes and preceded them in point of time. Not a few documentary records exist which profess to give us information concerning the early phenomena of law ; but, until philology has effected a complete analysis of the Sanskrit literature, our best sources of knowledge are undoubtedly the Greek Homeric poems, considered of course not as a history of actual occurrences, but as a description, -not wholly ideal- ised, of a state of society known to the writer. How- ever the fancy of the poet may have exaggerated certain features of the heroic age, the prowess of warriors and the potency of gods, there is no reason to believe that it has tampered with moral or meta- physical conceptions which were not yet the subjects CHAP. I. KUDIMENTARY JURAL IDEAS. 3 of conscious observation ; and in this respect the Homeric - literature is far more trustworthy than those relatively later documents which pretend to give an account of times similarly early, but which were compiled under philosophical or theological in- fluences, i If by any means we can determine the early forms of jural conceptions, they will be invaluable to us. These rudimentary ideas are to the jurist what the primary crusts of the earth are to the geologist. They contain, potentially, all the forms in which law has subsequently exhibited itself. The haste or the prejudice which has generally refused them all but the most superficial examination, must bear the blame of the unsatisfectory condition in which we find the science of jurisprudence. The inquiries of the jurist are in truth prosecuted much as inquiry in physics and physiology was prosecuted before observation had taken the place of assumption. Theories, plausible and comprehensive, but absolutely unverified, such as the Law of Nature or the Social Compact, enjoy a universal preference over sober re* search into the primitive history of society and law ; and they obscure the truth not only by diverting attention from the only quarter in which it can be found, but. by that most real and most important influence which, when once entertained and believed in, they are enabled to exercise on the later stages of jurisprudence. B 2 ANCIENT CODES. CHAP. I. The earliest notions connected with the conception, now so fully developed, of a law or rule of life, are those contained in the Homeric words " Themis " and " Themistes.'* " Themis," it is well known, appears in the later Greek pantheon as the Goddess of Justice, but this is a modem and much developed idea, and it is in a very diflferent sense that Themis is described in the Iliad as the assessor of Zeus. It is now clearly seen by all trustworthy observers of the primitive condition of mankind thai, in the infancy of the race, men could only account for sustained or periodically recurring action by supposing a ^personal agent. Thus, the wind blowing was a person and of course a divine person ; the sun rising, culminating, and setting was a person and a divine person; the earth yielding her increase was a person and divine. As, then, in the physical world, so in the moral. ; When a king decided a dispute by a sentence, the I judgment was assumed to be the result of direct I . inspiration. The divine agent, suggesting judicial awards to kings or to gods, the greatest of kings, was Themis. The peculiarity of the conception is brought out by the use of the plural. Themistes^ Themises, the plural of Themis, are the awards them- selves, divinely dictated to the judge. Kings are spoken of as if they had a store of " Themistes " ready to hand for use; but it must be distinctly understood that they are not laws, but judgments. " Zeus, or gHAP. I. TIIEMISTES. 6 the human king on earth," says Mr. Grote, in his History of Greece, "is not a law-maker, but a judge." He is provided with Themistes, but, con- sistently with the belief in their emanation from above, they cannot be supposed to be connected by any thread of principle; they are separate, isolated judgments. Even in the Homeric poems, we can see that these ideas are transient. Parities of circumstance)!^ were probably commoner in the simple mechanism of an- •cient society than they are now, and in the succes- sion of similar cases awards are likely to follow and resemble each other. Here we have the germ or rudiment of a Custom, a conception posterior to that of Themistes or judgments. However strongly we, with our modem associations, may be inclined to lay down (i priori that the notion of a Custom must pre- cede that of a judicial sentence, and that a judgment must affirm a Custom or punish its breach, it seems quite certain that the historical order of the ideas is that in which I have placed them. The Homeric} word for a custom in the embryo is sometimes " Themis" in the singular — more often " Dike," the meaning of which visibly fluctuates between a "judg- ment" and a " custom" or " usage." Nojtto^, a Law, so great and famous a term in the political voca* bulary of the later Greek society, does not occur in Homer. B 3 ANCIENT CODES. CHAP. I. This notion of a divine agency, suggesting the Themistes, and itself impersonated in Themis, must be kept apart from other primitive beliefs with which a superficial inquirer might confound it. The con- ception of the Deity dictating an entire code or body of law, as in the case of the Hindoo laws of Menu, seems to belong to a range of ideas more recent and more advanced. " Themis " and " Themistes " are much less remotely linked with that persuasion which clung so long and so tenaciously to the human mind, of a divine influence underlying and support- ing every relation of life, every social institution. In early law, and amid the rudiments of political thought, symptoms of this belief meet us on all sides. A supernatural presidency is supposed to consecrate and keep together all the cardinal institu- tions of those times, the State, the Kace, and the Family. Men, grouped together in the different re- lations which those institutions imply, are bound to celebrate periodically common rites and to offer common sacrifices ; and every now and then the same duty is even more significantly recognised in the purifications and expiations which they perform, and which appear intended to deprecate punishment for involuntary or neglectful disrespect. Everybody acquainted vnth ordinary classical literature will remember the sacra gentilicia^ which exercised so important an influence on the early Roman law of CHAP. I. BENTHAM'S ANALYSIS. 7 adoption and of wills* And to this hour the Hindoo Customary Law, in which some of the most curious features of primitive society are stereotyped, makes almost all the rights of persons and all the rules of succession hinge on the due solemnisation of fixed ceremonies at the dead man's funeral, that is, at every point where a breach occurs in the continuity of the family. Before we quit this stage of jurisprudence, a caution may be usefuUy given to the English stu- dent. Bentham, in his ** Fragment on Government," and Austin, in his " Province of Jurisprudence De- termined," resolve every law into a command of the lawgiver, an obligation imposed thereby on the citizen, and a sanction threatened in the event of disobedience ; and it is further predicated of the command^ which is the first element in a law, that it must prescribe, not a single act, but a series or number of acts of the same class or kind. The results of this separation of ingredients tally exactly with the facts of mature jurisprudence ; and, by a little straining of language, they may be made to correspond in form with all law, of all kinds, at all epochs. It is not, however, asserted that the notion of law entertained by the generality is even now quite in conformity with this dissection ; and it is curious that, the farther we penetrate into the primi- tive history of thought, the farther we find ourselves B 4 8 ANCIENT CODES. chap. i. from a conception of law which at all resembles a compound of the elements which Bentham deter- mined. It is certain that, in the infancy of man- kind, no sort of legislature, not even a distinct author of law, is contemplated or conceived of. Law has scarcely reached the footing of custom ; it is rather a habit. It is, to use a French phrase, " in the air." The only authoritative statement of right and wrong is a judicial sentence after the facts, not one presupposing a law which has been violated, but one which is breathed for the first time by a higher power into the judge's mind at the moment of adjudication. It is of course extremely difficult for us to realise a view so far removed from us in point both of time and of association, but it will become more credible when we dwell more at length on the constitution of ancient society, in which every man, living during the greater part of his life under the patriarchal despotism, was practically controlled in all his actions by a regimen not of law but of caprice. I may add that an Englishman should be better able than a foreigner to appreciate the historical fact that the " Themistes " preceded any conception of law, because, amid the many in- consistent theories which prevail concerning the cha- racter of English jurisprudence, the most popular, or at all events the one which most affects practice, is certainly a theory which assumes that adjudged cuAP. I. CUSTOMARY LAW. -9 cases and precedents exist antecedently to rules, [I ! principles, and distinctions. The " Themistes " have ^ too, it should be remarked, the characteristic which, in the view of Bentham and Austin, distinguishes single or mere commands from laws. A true la w enjoin s on all the citizens indifferently a number of acts similar in clas s o r kiftd ; and this is exactly the feature of a law which has most deeply impressed itself on the popular mind, causing the term " law " to be applied to mere uniformities, successions, and similitudes. A command prescribes only a single act, and it is to commands, therefore, that ** The- mistes " are more akin than to laws. They are simply adjudications on insulated states of fact, and do not necessarily follow each other in any orderly sequence. The literature of the heroic age discloses to us law in the germ* under the " Themistes " and a little more developed in the conception of " Dike." The next stage which we reach in the history of juris- prudence is strongly marked and surrounded by the utmost interest. Mr. Grote, in the second part and second chapter of his History, has fully described the mode in which society gradually clothed itself with a different character from that delineated by Homer. Heroic kingship depended partly on divinely given prerogative, and partly on the possession of supereminent strength, courage, and wisdom. Gra- 10 ANCIENT CODE'S. chap. i. dually, as the impression of the monarch's sacredness became weakened, and feeble members occurred in the series of hereditary kings, the royal power de- cayed, and at last gave way to the dominion of aristocracies. If language so precise can be used of the revolution, we might say that the office of the king was usurped by that council of chiefs which Homer repeatedly alludes to and depicts. At all events from an epoch of kingly rule we come every- where in Europe to an era of oligarchies ; and even where the name of the monarchical functions does not absolutely disappear, the authority of the king is reduced to a mere shadow. He becomes a mere hereditary general, as in LacedsBmon, a mere func* tionary, as the King Archon at Athens, or a mere fonnal hierophant, like the Rex Sacrijiculus at Rome. In Greece, Italy, and Asia Minor, the dominant orders seem to have universally consisted of a number of families united by an assumed relation- ship in blood, and, though they all appear at first to have laid claim to a quasi-sacred character, their strength does not seem to have resided in their pretended sanctity. Unless they were prematurely overthrown by the popular party, they all ulti- mately approached very closely to what we should now understand by a political aristocracy. The changes which society underwent in the commu- nities of the further Asia occurred of course at CHAP. I. ARISTOCRATIC PERIOD. U periods long anterior in point of time to these revo- lutions of the Italian and Hellenic worids ; but their relative place in civilisation appears to have been the same, and they seem to have been exceedingly similar in general character. There is some evidence that the races which were subsequently united under the Persian monarchy, and those which peopled the peninsula of India, had all their heroic age and their era of aristocracies ; but a military and a religious oligarchy appear to have grown up separately, nor was the authority of the king generally superseded. Contrary, too, to the course of events in the West, the religious element in the East tended to get the better of the military and political. Military and civU aristocracies disappear, annihilated or crushed into insignificance between the kings and the sacer- dotal order; and the ultimate result at which we. arrive is, a monarch enjoying great power, but cir-loUuiA **^ cumscribed by the privileges of a caste of priests. ' With these differences, however, that in the East aristocracies became religious, in the West civil or political, the proposition that a historical era of aristocracies succeeded a historical era of heroic kings may be considered as true, if not of all man- kind, at all events of all branches of th e Indo-Euro- pean family of nations. "the important point for the jurist is that these aristocracies were universally the depositaries and 12 ANCIENT CODES. chat. i. administrators of law. They seem to have succeeded to the prerogatives of the king, with the important diflference, however, that they do not appear to have pretended to direct inspiration for each sentence. The connection of ideas which caused the judgments of the patriarchal chieftain to be attributed to superhuman dictation still shows itself here and there in the claim of a divine origin for the entire body of rules, or for certain parts of it, but the progress of thought no longer permits the solution of particular disputes to be explained by suj^osing an extra-human interposition. What the juristical oligarchy now claims is to monopolise the know- ledge of the laws, to have the exclusive possession of the principles by which quarrels are decided. We have in fact arrived at the epoch of Customary Law, Customs or Observances now exist as a sub- stantive aggregate, and are assumed to be precisely known to the aristocratic order or caste. Our au- thorities leave us no doubt that the trust lodged with the oligarchy was sonietimes abused, but it certainly ought not to be regarded as a mere usur- pation or engine of tyranny. Before the invention of writing, and during the infancy of the art, an aristocracy invested with judicial privileges formed the only expedient by which accurate preservation of the customs of the race or tribe could be at all approximated to. Their genuineness was, so far as CHAr. 1. CUSTOMARY LAW. 13 possible, insured by confiding them to the recollec- tion of a limited portion of the community. The epoch of Customary Law, and of its custody by a privileged order, is a very remarkable one. The condition of the jurisprudence which it implies has left traces which may still be detected in legal and popular phraseology. The law, thus known exclu- sively to a privileged minority, whether a caste, an aristocracy, a priestly tribe, or a sacerdotal college, is true unwritten law. Except this, there is no such thing as unwritten law in the world. English case-law is sometimes spoken of as unwritten, and there are some English theorists who assure us that if a code of Eng lish jurisprud ence were prepared we should be turning unwritten law into written— a conversion, as they insist, if not of doubtful policy, at all events of the greatest seriousness. Now, it is quite true that there was once a period at which the English common law might reasonably have been termed un- written. The elder English judges did really pretend to knowledge of rules, principles, and distinctions which were not entirely revealed to the bar and to the lay-public. Whether all the law which they claimed to monopolise was really unwritten, is ex- ceedingly questionable ; but at all events, on the assumption that there was once a large mass of civil and criminal rules known exclusively to the judges, it presently ceased to be unwritten law. As soon as \ 14 ANCIENT CODES. chap. i. the Courts at Westminster Hall began to base their judgments on cases recorded, whether in the year books or elsewhere, the law which they administered became written law. At the present moment a rule of English law has first to be disentangled from the recorded facts of adjudged printed precedents, then thrown into a form of words varying with the taste, precision, and knowledge of the particular judge, and then applied to the circumstances of the case for ad- judication. But at no stage of this process has it any characteristic which distinguishes it from written law. It is written case-law, and only different from code-law because it is written in a different way. From the period of Customary Law we come to another sharply defined epoch in the history of juris- prudence. We arrive at the era of Codes, those ancient codes of which the Twelve Tables of Rome were the most famous specimen. In Greece, in Italy, on the Hellenised sea-board of Western Asia, these codes all made their appearance at periods much the same everywhere, not, I mean, at periods identical in point of time, but similar in point of the relative progress of each CQmmunity. Everywhere, in the countries I have named, laws engraven on tablets and published to. the people take the place of usages deposited with the recollection of a privileged oli- garchy. It must not for a moment be supposed that the refined considerations now urged in favour of what CHAP. I. ANCIENT CODES. 15 is called codification had any part or place in the change I have described. The ancient codes were Ui doubtless originally suggested by the discovery and ILp' dif^sion of the art of writing. It is true that the aristocracies seem to have abused their monopoly of legal knowledge; and at all events their exclusive possession of the law was a formidable impediment to the success of those popular movements which began to be universal in the western world. But, though democratic sentiment may have added to their popu- larity, the codes were certainly in the main a direct result of the invention of writing. Inscribed tablets were seen to be a better depositary of law, and a better security for its accurate preservation, than the memory of a number of persons however strength- ened by habitual exercise. The Roman code belongs to the class of codes I have been describing. Their value did not consist in any approach to symmetrical classifications, or to terseness and clearness of expression, but in their publicity, and in the knowledge which they furnished I to everybody, as to what he was to do, and what hot \ to do; It is, indeed, true that the Twelve Tables of Rome do exhibit some traces of systematic arrange- ment, but this is probably explained by tlie tradition that the framers of that body of law called in the assistance of Greeks who enjoyed the later Greek ex- perience in the art of law-making. The fragments of 16 ANCIENT CODES. chap. i. • the Attic Code of Solon show, however, that it had but little order, and probably the laws of Draco had even less. Quite enough too remains of these collec- tions, both in the East and in the West, to show that they mingled up religious, civil, and merely moral ordinances, without any regard to diflferences in their essential character; and this is consistent with all we know of early thought from other sources, the severance of law from morality, and of religion from law, belonging very distinctly to the later stages of mental progress. But, whatever to a modern eye are the singularities of these Codes, their importance to ancient societies was unspeakable. The question — and it was one which aflfected the whole future of each community — was not so much whether there should be a code at all, for the majority of ancient societies seem to have obtained them sooner or later, and, but for the great interruption in the history of jurisprudence created by feudalism, it is likely that all modem law would be distinctly traceable to one or more of these fountain- heads. But the point on which turned the history /) of the race was, at what period, at what stage of their I social progress, they should have their laws put into j writing. In the western world the plebeian or popular element in each State successfully assailed the oli- garchical monopoly, and a code was nearly universally obtained early in the history of the Commonwealth. CHAP. r. LAWS OF MENU. 17 But, in the East, as I have before mentioned, the ruling aristocracies tended to become religious rather than military or political, and gained, therefore, rather than lost in power; while in some instances the physical conformation of Asiatic countries had the effect of making individual communities larger and more nu- merous than in the West ; and it is a known social law that the larger the space over which a particular set of institutions is diffused, the greater is its tenacity and vitality. From whatever cause, the codes obtained by Eastern societies were obtained, relatively, much later than by Western, and wore a very different cha- racter. The reliVi ona Qligarc hJfifl nf Aft^^i either foy> their own guidance, or for the relief of their memory, or for the instruction of their disciples, seem in all cases to have ultimately embodied their legal leam- ing in a code ; but the opportunity of increasing and consolidating their influence was probably too tempting to be resisted. Their complete monopoly of legal knowledge appears to have enabled them to put off on the world collections, not so much of the rules actually observed as of the rules which the priestly order considered proper to be observed. The Hindoo code, called the Laws of Menu, which is certainly a Brahmin compilation, undoubtedly en- shrines many genuine observances of the Hindoo race, but the opinion of the best contemporary orientalista » is, that it does not, as a whole, represent a set of rules c 18 ANCIENT CODES. chap. i. ever actually administered in Hindostan. It is, in great part, an ideal picture of that which, in the view T^jty''^ * \ of the Brahmins , ought t o be the law. It is consistent with human nature and with the special motives of their authors, that codes like that of Menu should pretend to the highest antiquity and claim to have emanated in their complete form from the Deity. Menu, according to Hindoo mythology, is an emana- tion from the supreme God ; but the compilation which bears his name, though its exact date is not easily dis- covered, is, in point of the relative progress of Hindoo jurisprudence, a recent production. Among the chief advantages which the Twelve Tables and similar codes conferred on the societies I which obtained them, was the protection which they afforded against the frauds of the privileged oligarchy and also against the spontaneous depravation and debasement of the national institutions. The Roman Code was merely an enunciation in words of the existing customs of the Roman people. Relatively to the progress of the Romans in civilisation, it was a remarkably early code, and it was published at a time when Roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably confounded. Now a barbarous society practising a body of customs, is exposed to some especial dangers which may be absolutely fatal to its progress in civilisation. The CHAP. I. VALUE OF THE CODES. 19 usages which a particular community is found to have adopted in its infancy and in its primitive seats are generally those which are on the whole best suited to promote its physical and moral weU-being ; and, if they are retained in their integrity until new social wants have taught new practices, the upward march of society is almost certain. But unhappily there is a law of development which ever threatens to operate upon unwritten usage. The customs are of course obeyed by multitudes who are incapable of understanding the true ground of their expediency, and who are therefore left inevitably to invent su- perstitious reasons for their permanence. A process then commences which may be shortly described by saying that usage which is reasonable generates usage which is unreasonable. Analogy, the most valu flj )le of instruments in the m aturit y of jurispru- dence, is the most dangerous of snares in its infanc y. Prohibitions and ordinances, originaUy confined, for good reasons, to a single description of acts, are made to apply to aU acts of the same class, because a man menaced with the anger of the gods for doing one thing, feels a natural terror in doing any other thing which is remotely like it. After one kind of food has been interdicted for sanitary reasons, the prohi- bition is extended to all food resembling it, though the resemblance occasionally depends on analogies the most fanciful. So, again, a wise provision for c 2 20 ANCIENT CODES. chap. i. insuring general cleanliness dictates in time long routines of ceremonial ablution; and that division into classes which at a particular crisis of social history is necessary for the maintenance of the na- tional existence degenerates into the most disastrous and blighting of aU human institutions — Caste. ,The fate of the Hindoo law is, in fact, the measure of the value of the Roman code. Ethnology shows us that the Romans and the Hindoos sprang from the same origmal stock, and there is indeed a strikmg resem- blance between what appear to have been their original customs. Even now, Hindoo jurisprudence has a substratum of forethought and sound judg- ment, but irrational imitation has engrafted in it an immense apparatus of cruel absurdities. From these corruptions the Romans were protected by their code. It was compiled while usage was still wholesome, and a hundred years afterwards it might have been too late. The Hindoo law has been to a great extent embodied in writing, but, ancient as in one sense are the compendia which still exist in Sanskrit, they contain ample evidence that they were drawn up after the mischief had been done. We are not of course entitled to say that if the Twelve Tables had not been published the Romans would have been con- demned to a civilisation as feeble and perverted as that of the Hindoos, but thus much at least is certain, that with their code they were exempt from the very chance of so unhappy a destiny. CHAP. n. LEGAL FICTIONS. 21 CHAP. II. LEGAL FICTIONS. When primitive law has once been embodied in a Code, there is an end to what may be called its spon- |[ taneous development. Henceforward the change s effected in it, if effected at all, are effected deliberately and from without . It is impossible to suppose that the customs of any TBce or tribe remained unaltered during the whole of the long — in some instances the immense — interval between their declaration by a patriarchal monarch and their publication in writing. It would be unsafe too to affirm that no part of the alteration was effected deliberately. But from the little we know of the progress of law during this period, we are justified in assimiing that set purpose had the very smallest share in producing change. Such innovations on the earliest usages as disclose themselves appear to have been dictated by feelings and modes of thought which, under our present men- tal conditions, we are unable to comprehend. A new era begins, however, with the Codes. Wherever, after this epoch, we trace the course of legal modification we are able to attribute it to the conscious desire of improvement, or at all events of compassing objects c 3 22 LEGAL FICTIONS. chap. ii. other than those which were aimed at in the primitive times. It may seem at first sight that no general proposi- tions worth trusting can be elicited from the history of legal systems subsequent to the codes. The field is too vast. We cannot be sure that we have included a sufficient number of phenomena in our observations, or that we accurately understand those which we have observed. But the undertaking will be seen to be more feasible, if we consider that after the epoch of codes the distinction between stationary and pro- gressive societies begins to make itself felt. It is only with the progressive societies that we are con- cerned, and nothing is more remarkable than their extreme fewness. In spite of overwhelming evidence, it is most difficult for a citizen of western Europe to bring thoroughly home to himself the truth that the civilisation which surrounds him is a rare exception in the history of the world. The tone of thought common among us, all our hopes, fears, and specula- tions, would be materially aflRected, if we had vividly before us the relation of the progressive races to the totality of human life. It is indisputable that much the greatest part of mankind has never shown a par- ticle of desire that its civil institutions should be improved since the moment when external complete- ness was first given to them by their embodiment in some pennanent record. One set of usages has occa- CHAP. u. STATIONARY AND PROGRESSIVE SOCIETIES. 23 sionally been violently overthrown and superseded by another ; here and there a primitive code, pretending to a supernatural origin, has been greatly extended, and distorted into the most surprising forms, by the perversity of sacerdotal commentators; but, except in a small section of the world, there has been nothing like the gradual amelioration of a legal system. There has been material civilisation, but, instead of the civilisation expanding the law, the law has limited the civilisation. The study of races in their primi* tive condition affords us some clue to the point at which the development of certain societies has stopped. We can see that Brahminical India has not passed beyond a stage which occurs in the history of all the families of mankind, the stage at which a rule of law is not yet discriminated from a rule of religion. The members of such a society consider that the transgression of a religious ordinance should be pu- nished by civil penalties, and that the violation of a civil duty exposes the delinquent to divine correction. In China this point has been past, but progress seems to have been there arrested, because the civil laws are coextensive with all the ideas of which the race is capable. The difference between the stationary and progressive societies is, however, one of the great secrets which inquiry has yet to penetrate. Among partial explanations of it I venture to place the con- siderations urged at the end of the last chapter. It c "4 " 24 LEGAL FICTIONS. chap. ii. may further be remarked that no one is likely to succeed in the investigation who does not clearly k realise that the stat ionary condition of the hug ian l\ rstnf^ 1ft t[if{ nil^^p the progressive the exception. And another indispensable condition of success is an ac* curate knowledge of Eoman law in aU its principal stages. The Roman jurisprudence has the longest •known history of any set of human institutions. The character of all the changes which it underwent is tolerably well ascertained. From its commencement to its close, it was progressively modified for the better, or for what the authors of the modification conceived to be the better, and the course of improve- ment was continue^ through periods at which all the rest of human thought and action materially slackened its pace, and repeatedly threatened to settle down into stagnation. I confine myself in what follows to the progressive I societies. With respect to them it may be laid down J that social nec essities^ fmd^^^cialopmion are always * i more or less in advance of Law. We may come inde- finitely near to the closing of the gap between them, but it has a perpetual tendency to reopen. Law is stable ; the societies we are speaking of are progres- sive. The greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed. A general proposition of some value may be ad- i <^ CHAP. II. FICTIONS, EQUITY, AND LEGISLATION. 25 yanced with respect to the agencies by which Law is brought into harmony with society. These instru- mentalities seem to me to be three in number, Legal Fictions, Equity, and Legislation. Their historical order is that in which I have placed them. Sometimes two of them will be seen operating together, and there are legal systems which have escaped the influence of one or other of them. But I know of no instance ilw which the order of their appearance has been changed or inverted. The early history of one of them, Equity, is universally obscur e, and hence it may be thought by some that certain isolated statutes, refor- matory of the civil law, are older than any equitable jurisdiction. My own belief is that remedial Equity is everywhere oldei: than remedial Legislation ; but, should this be not strictly true, it would only be necessary to limit the proposition respecting their order of sequence to the periods at whicih they exer- cise a sustained and substantial influence in trans* forming the original law. I employ the word " fiction " in a sense consider- ably wider that that in which English lawyers are accustomed to use it, and with a meaning much more -extensive thfen that which belonged to the Roman *' fictiones." Fictio, in old Roman law, is properly a term of pleading, and signifies a false averment on the part of the plaintifi^ which the defendant was not allowed to traverse; such, for example,^ as an aver- -» «» • a^ ^* «■• P* r^t^ 26 LEGAL FICTIONS. chap, ii, ment that the plaintiff was a Roman citizen, when in truth he was a foreigner. The object of these " fic- tiones " was, of course, to give jurisdiction, and they therefore strongly resembled the allegations in the writs of the English Queen's Bench and Exchequer, by which those Courts contrived to usurp the juris- diction of the Common Pleas : — the allegation that the defendant was in custody of the king's mar- shal, or that the plaintiff was the king's debtor, and could not pay his debt by reason of the defendant's default. But I now employ the expression " Legal Fiction " to signify any assumption which conceals, or affects to conceal, the fact that a rule of law has un- dergone alteration, its letter remaining unchanged, its operation being modified. The words, therefore, M include the instances of fictions which I have cited from the English and Roman law, but they embrace much more, for I should speak both of the English Case-law and of the Roman Responsa Prudentum as resting on fictions. Both these examples will be examined presently. The facLis in both cases that the law has been wholly changed ; the fiction is that it remains what it always was. It is not difficult to understand why fictions in all their forms are parti- cularly congenial to the infancy of society. They satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change which is CHAP. II. LEGAL FICTIONS. 27 always present. At a particular stage of social pro- gress they are invaluable expedients for overcoming the rigidity of law, and, indeed, without one of them, the Fiction of Adoption which permits the family [ tie to be artificially created, it is difficult to under- stand how society would ever have escaped from its swaddling-clothes, and taken its first steps towards civilisation. We must, therefore, not suffer our- selves to be affected by the ridicule which Bentham pours on legal fictions wherever he meets them. To revile them as merely fraudulent is to betray igno- rance of their peculiar office in the historical deve- lopment of law. But at the same time it would be equally foolish to agree with those theorists who, discerning that fictions have had their uses, argue that they ought to be stereotyped in our system. They have had their day, but it has long since gone by. It is unworthy of us to effect an ad- mittedly beneficial object by so rude a device as a legal fiction. I cannot admit any anomaly to be innocent, which makes the law either more difficult to understand or harder to arrange in harmonious order. Now legal fictions are the greatest of obstacles^ to sjnnmetrical classification. The rule of law re- mains sticking in the system, but it is a mere shell. It has been long ago undermined, and a new rule hides itself under its cover. Hence there is at once a difficulty in knowing whether the rule which is 28 EQUITY. CHAt. n. actually operative should be classed in its true or in its apparent place, and minds of different casts will differ as to the branch of the alternative which ought to be selected.' K the English law is ever to assume an orderly distribution, it will be necessary to prune away the legal fictions which, in spite of some recent legislative improvements, are still abundant in it. The next instrumentality by which the adaptation of law to social wants is carried on I call Equity, meaning by that word any body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the* civil law in virtue of a superior sanctity inherent in those principles. The Equity whether of the Rpm an Praetors or of the English Chan cellors, differs from the Fictions which in each case preceded it, in that the interference with layr ia op en a nd avowed . On the other hand, it differs from Legislation, the agent of legal improvement which comes after it, in that its claim to authority is grounded, not on the preroga- tive of any external person or body, not even on that of the magistrate who enunciates it, but on the special nature of its principles, to which it is alleged that all law ought to conform. The very conception of a set of principles, invested with a higher sacredness than those of the original law and demanding appli- cation independently of the consent of any external body, belongs to a much more advanced stage of CHAP. II. LEGISLATION. 29 thought than that to which legal fictions originally suggested themselves. Legislation, the enactments of a legislature which, whether it take the form of an autocratic prince or of a parliamentary assembly, is the assumed organ of] the entire society, is the last of the ameliorating in- strumentalities. It differs from Legal Fictions jtist as Equity differs from them, and it is also distinguished from Equity, as deriving its authority from an external body or person. Its obligatory force is independent of its principles. The legislature, whatever be the actual restraints imposed on it by public opinion, is in theory empowered to impose what obligations it pleases on the members of the community. There is nothing to prevent it s legislatin g in the wanto nness of c aprice ^ Legislation may be dictated by equity, if that last word be used to indicate some standard of right and wrong to which its enactments happen to be adjusted ; but then these enactments are indebted for their binding force to the authority of the legis- lature and not to that of the principles on which the legblature acted ; and thus they differ from rules of Equity, in the technical sense of the word, which pre- tend to a paramount sacredness entitling them at once to the recognition of the courts even without the concurrence of prince or parliamentary assem- bly. It is the more necessary to note these differ- ences, because a student of Bentham would be apt to 30 LEGAL FICTIONS. chap. ii. confound Fictions, Equity, and Statute law under the single head of legislation. They all, he would say, involve law-making; they differ only in respect of the machinery by which the new law is produced. That is perfectly true, and we must never forget it ; but it furnishes no reason why we should deprive ourselves of so convenient a term as Legislation in the special sense. Legislation and Equity are disjoined in the popular mind and in the minds of most law- yers ; and it will never do to neglect the distinction between them, however conventional, when important practical consequences follow from it. It would be easy to select from almost any regu- larly developed body of rules examples of legal fic- tions^ which at once betray their true character to the modern observer. In the two instances which I pro- ceed to consider, the nature of the expedient em- ployed is not so readily detected. The first authors of these fictions did not perhaps intend to innovate, certainly did not wish to be suspected of innovating. There are, moreover, and always have been, persons who refuse to see any fiction in the process, and conventional language bears out their refusal. No examples, therefore, can be better calculated to illus- trate the wide difiiision of legal fictions, and the ^ efficiency with which they perform their two-fold office of transforming a system of laws and of con- cealing the transformation. i CHAP. II. CASE-LAW. 31 We in England are well accustomed to the exten- sion, modification, and improvement of law by a machinery which, in theory, is incapable of altering one jot or one line of existing jurisprudence. The process by which this virtual legislation is effected is not so much insensible as unacknowledged. With respect to that great portion of our legal system which is enshrined in copses and recorded in law reports, we habitually employ a double language and entertain, as it would appear, a double and incon- sistent set of ideas. When a group of facts come before an English Court for adjudication, the whole course of the discussion between the judge and the advocates asstunes that no question is, or can be, raised which will caU for the application of any principles but old ones, or of any distinctions but such as have long since been allowed. It is taken absolutely for sranted that there is somewhere a rule of known law which will cover the facts of the dispute now litigatedj^and that, if such a rule be not discovered, it is only that the necessary patience, knowledge, or acumen is not forthcoming to detect it. Yet the moment the judgment has been rendered and reported, we slide unconsciously or unavowedly into a new language and a new train of thought. We now admit t hat the new decision Aog modified the law. The rules applicable have, to use the very inaccurate expression sometimes employed, become 32 LEGAL FICTIONS. chap. ii. more elastic. In fact they have been changed. A clear addition has been made to the precedents, and the canon of law elicited by comparing the prece- dents is not the same with that which would have been obtained if the series of cases had been curtailed by a single example. The fact that the old rule has been repealed, and that a new one has replaced it, eludes us, because we are not in the habit of throwing, into precise language the legal formulas which we derive from the precedents, so that a change in their tenor is not easily detected unless it is violent and glaring. I shaU not now pause to consider at length the causes which have led English lawyers to ac- quiesce in these curious anomalies. Probably it will be found that originally it was the rdfeeived doctrine ■' that somewhere, in nubibus or ingrefftio magistratuum^ thferfe existed a complete, coherent, symmetrical body of English law, of an amplitude sufficient to furnish principles which would apply to any conceivable combination of circumstances. The theory was at first much more thoroughly believed in than it is now, and indeed it may have had a better founda- tion. The judges of the thirteenth century may have really had at their command a nune of law unrevealed to the bar and to the lay-public, for there is some reason- for suspecting that in secret they borrowed freely, though not always 'wisely, from current compendia of the Roman and Canoil laws. ^ CHAP. n. ANSWERS OP THE LEARNED. 33 But that storehouse was closed so soon as the points decided at Westminster Hall became numerous enough to supply a basis for a substantive system of jurisprudence ; and now for centuries English prac- titioners have so expressed themselves as to convey the paradoxical proposition that, except by Equity and Statute law, nothing has been added to the basis since it was first constituted. We do not admit that our tribunals legislate; we imply that they have never legislated ; and yet we maintain that the rules of the English common law, with some assistance from the Court of Chancery and from Parliament, are coextensive with the complicated interests of modem society. A body of law bearing a very close and very in-v structwe resemblance to our case-la^W in those par- 1 ticulars which I have noticed, was known to the \ Romans under the name of the Responsa Prudentum, , the " answers of the learned in the law." The form of these Responses varied a good deal at different periods of the Roman jurisprudence, but throughout its whole course they consisted of explanatory glosses on authoritative written docimients, and at first they were exclusively collections of opinions interpretative of the Twelve Tables. As with us, all legal language adjusted itself to the assumption that the text of the old Code remained unchanged. There was the ex- press rule. It overrode all glosses and comments, • ^ D { i 1 34 LEGAL FICTIONS. chap. ii. and no one openly admitted that any interpretation of it, however eminent the interpreter, was safe from revision on appeal to the venerable texts. Yet in point of fact, Books of Responses bearing the names of leading jurisconsults obtained an authority at least equal to that of our reported cases, and constantly modified, extended, limited or practically overruled the provisions of the Decemviral law. The authors of the new jurisprudence during the whole progress of its formation professed the most sedulous respect for the letter of the Code. They were merely explaining it, deciphering it, bringing out its full meaning; but then, in the result, by piecing texts together, by adjusting the law to states of fact which actually presented themselves and by speculating on its possible application to others which might occur, by introducing principles of interpretation derived from the exegesis of other written documents which fell under their observation, they educed a vast variety of canons which had never been dreamed, of by the compilers of the Twelve Tables and which were ! in truth. M*ely or never to be found there. All these treatises of the jurisconsults claimed respect on the ground of their assumed conformity with the Code, but their comparative authority depended on the reputation of the particular jurisconsults who gave them to the world. Any name of univer- sally acknowledged greatness clothed a Book of CHAP. U. ANSWERS OF TH£ LEARNED. 35 Responses with a binding force hardly less than that which bdLonged to enactments of the legislature; and such a book in its turn constituted a new foun- dation on which a further body of jurisprudence might rest. The Responses of the early lawyers were not however published, in the modem sense, by their author. They were recorded and edited by his pupils, and were not therefore in all probability arranged according to any scheme of classification. The part of the students in these publications must be carefully noted, because the service they rendered to their teacher seems to have been generally repaid * ^ by his sedulous attention to the pupils' education. The educational treatises called Institutes or Com- mentaries, which are a later fruit of the duty then recognised, are among the most* remarkable features of the Roman system. It was apparently in these Institutional works, and not in the books intended for trained lawyers, that the jurisconsults gave to the public their classifications and their proposals for modifjdng and improving the technical phraseology. In comparing the Roman Responsa Prudentum with their nearest English counterpart, it must be care- fully borne in mind that the authority by which this part of the Roman jurisprudence was expounded was not the bench^ but the bar. The decision of a Roman tribunal, though conclusive in the particular case, had no ulterior authority except such as was given D 2 36 LEGAL FICTIONS. CHAP. II. V J e^ by the professional repute of the magistrate who hap- pened to be in office for the time. Properly speaking, there was no institution at Rome during the republic analogous to the English Bench, the Chambers of Imperial Grermany, or the Parliaments of Monarchical France, There were magistrates indeed, invested with momentous judicial functions in their several departments, but the tenure of the magistracies was but for a single year, so that they are much less aptly compared to 2^ permanent judicature than to a cycle of offices briskly circulating among the leaders of the bar. Much might be said on the origin of a condi- tion of things which looks to us like a startling anomaly, but which was in fact much more congenial than our own system to the spirit of ancient societies, tending, as they always did, to split into distinct orders which, however exclusive themselves, tolerated no professional hierarchy above them. It is remarkable that this system did not produce certain effects which might on the whole have been expected from it. It did not, for example, popidarise the Roman law, — ^it did not, as in some of the Greek republics, lessen the effi)rt of intellect required for th^ mastery of the science, although its diffusion and authoritative exposition were opposed by no artificial barriers. On the contrary, if it had not been for the operation of a separate set of causes, there were strong probabilities that the Roman jurisprudence would ciiAP. II. ANSWERS OF THE LEARNED. 37 have become as minute, technical, and difficult as any system which has since prevailed. Again, a conse- quence which might have still more naturally have been looked for, does not appear at any time to have exhibited itself. The jurisconsults, until the liberties of Rome were overthrown, formed a class which was quite undefined and must have fluctuated greatly in numbers ; nevertheless, there does not seem to have existed a doubt as to the particular individuals whose opinion, in their generation, was conclusive on the cases submitted to them. The vivid pictures of a I leading jurisconsult's daily practice which abound in Latin literature — ^the clients from the country flocking to his antechamber in the early morning, and the students standing round with their note-books to record the great lawyer's replies — are seldom or never identified at any given period with more than one or two conspicuous names. Owing too to the direct contact of the client and the advocate, the Roman people itself seems to have been always alive to the rise and fall of professional reputation, and there is abundance of proof, more particularly in the well- known oration of Cicero, " Pro Muraena," that the reverence of the commons for forensic success was apt to be excessive rather than deficient. We cannot doubt that the peculiarities which have been noted in the instrumentality by which the deve- lopment of the Roman law was first effected, were the D 3 \ 38 LEGAL FICTIONS. cnAP. II. \ source of its characteristic excellence, its early wealth in principles. The growth and exuberance of prin- ciple was fostered, in part, by the competition among the expositors of the law, an influence wholly un- known where there exists a Bench, the depositaries intrusted by king or commonwealth with the prero- gative of justice. But the chief agency, no doubt, was the uncontrolled multiplication of cases for legal decision. The state of facts which caused genuine perplexity to a country client was not a whit more entitled to form the basis of the jurisconsult's Re- sponse, or legal decision, than a set of hypothetical circumstances propounded by an ingenious pupil. All combinations of fact were on precisely the same footing, whether they were real or imaginary. It was nothing to the jurisconsult that his opinion was overruled for the moment by the magistrate who ad- judicated on his client's case, unless that magistrate happened to rank above him in legal knowledge or the esteem of his profession. I do not, indeed, mean it to be inferred that he would wholly omit to con- sider his client's advantage, for the client was in earlier times the great lawyer's constituent and at a later period his paymaster, but the main road to the rewards of ambition lay through the good opinion of his order, and it is obvious that under such a system as I have been describing this was much more likely to be secured by viewing each case as an illustration CHAP. n. ANSWERS OF TIIE LEARNED. 39 of a great principle, or an exemplification of a broad rule, than by merely shaping it for an insulated forensic triumph* A still more powerful influence must have been exercised by the want of any distinct check on the suggestion or invention of possible ques- tions. Where the data can be multiplied at pleasure, the facilities for evolving a general rule are immensely increased. As the law is administered among our- selves, the judge cannot travel out of the sets of facts exhibited before him or before his predecessors. Accordingly each group of circumstances which is adjudicated upon receives, to employ a Gallicism, a sort of consecration. It acquires certain qualities which distinguish it from every other case genuine or Hypothetical. But at Rome, as I have attempted to explain, there was nothing resembling a Bench or Chamber of judges; and therefore no combination of facts possessed any particular value more than an- other. When a difficulty came for opinion before the jurisconsult, there was nothing to prevent a per- son endowed with a nice perception of analogy from at once proceeding to adduce and consider an entire class of supposed questions with which a particular feature connected it. Whatever were the practical advice given to the client, the responsum treasured up in the note-books of listening pupils would doubt- less contemplate the circumstances as governed by a great principle, or included in a sweeping rule. D 4 \ 40 LEGAL FICTIONS. chap. ii. Nothing like this has ever been possible among our- selves, and it should be acknowledged that in many criticisms passed on the English law the manner in which it has been enunciated seems to have been lost sight of. The hesitation of our courts in declaring principles may be much more reasonably attributed to the comparative scantiness of our precedents, voluminous as they appear to him who is acquainted with no other system, than to the temper of our judges. It is true that in the wealth of legal principle we are considerably poorer than several modem European nations. But they, it must be remembered, took the Roman jurisprudence for the foundation of their civil institutions. They built the dSbris of the Roman law into their walls ; but in the materials and work- manship of the residue there is not much which distinguishes it favourably from the structure erected by the English judicature. The period of Roman freedom was the period during which the stamp of a distinctive character was im- pressed on the Roman jurisprudence; and through all the earlier part of it, it was by the Responses of the jurisconsults that the development of the law was mainly carried on. But as we approach the fall of the republic there are signs that the Responses are assuming a form which must have been fatal to their farther expansion. They are becoming systematised and reduced into compendia. Q. Mucins Scasvola, the W^^^m^mm ^m CHAF. II. LATER JURISCONSULTS- 41 Pontifex, is said to have published a manual of the entire Civil Law, and there are traces in the writings of Cicero of growing disrelish for the old methods, as compared with the more active instruments of legal innovation. Other agencies had in fact by this time been brought to bear on the law. The_Edict,* or annual proclamation of the Praetor, had risen into credit .as the principal engine of law reform, and L. Cornelius Sylla, by causing to be enacted the great group of statutes called the Leges ComelicB^ had shown what rapid and speedy improvements can be eflfected by direct legislation. The final blow to the \ Responses was dealt by Augustus, who limited to a few leading jurisconsults the right of giving binding opinions on cases submitted to them, a change which, though it brings us nearer the ideas of the modem world, must obviously have altered fundamentally the characteristics of the legal profession and the nature of its influence on Roman law. At a later period another school of jurisconsults arose, the great lights of jurisprudence for all time. But Ulpian and Paulus, Gains and Papinian, were not authors of Responses. Their works were regular treatises on particular departments of the law, more especially on the Praetor's Edict. The Equity of the Romans and the Praetorian Edict by which it was worked into their system, will be considered in the next chapter. Of the Statute Law i^ i .h 42 LEGAL FICTIONS. chap. ii. it is only necessary to say that it was scanty during the republic, but became very voluminous under the empire. In the youth and infancy of a nation it is a rare thing for the legislature to be called into action for the general reform of private law. The * cry of the people is not for change in the laws, which are usually valued above their real worth, but solely for their pure, complete, and easy administration ; and recourse to the legislative body is generally directed to the removal of some great abuse, or the decision of some incurable quarrel between classes and d3masties. There seems in the minds of the Romans to have been some association between the enactment of a large body of statutes and the settlement of society after a great civil commotion. Sylla signalised his reconstitution of the republic by the Leges Comelise ; Julius Cffisar contemplated vast additions to^ the Statute Law ; Augustus caused to be passed the all- important group of Leges JuUsb; and among later emperors the most active promulgators of constitu- tions are princes who, like Constantine, have the concerns of the world to readjust. The true period/ of Roman Stiatute Law does not begin till the esta- blishment of the empire. The enactments of the emperors, clothed at first in the pretence of popular sanction, but afterwards emanating undisguisedly from the imperial prerogative, extend in increasing massiveness from the consolidation of Augustus's CHAP. n. ROMAN STATUTES. 43 power to the publication of the Code of Justinian. It will be seen that even in the reign of the second emperor a considerable approximation is made to that condition of the law and that mode of administering it with which we are all familiar. A statute law and a limited board of expositors have risen into be- ing ; a permanent court of appeal and a collection of approved commentaries will very shortly be added ; and thus we are brought close on the ideas of our own day. 44 EQUiry. cnAP. lu. CHAP. III. LAW OF NATUBB AND EQUITT. w J The theory of a set of legal principles, entitled by I : their intrinsic superiority to supersede the older law, very early obtained currency both in the Eoman i state and in England. Such a body of principles, existing in any system, has in the foregoing chapters been denominated Equity, a term which, as will pre- sently be seen, was one (though only one) of the designations by which this agent of legal change was known to the Roman jurisconsults. The jurispru- dence of the C ourt of (^>ha.Tip.Ary^ which bears the name of Equity in England, could only be adequately discussed in a separate treatise. It is extremely complex in its texture and derives its materials from several heterogeneous sources. The early ecclesias- tical chancellors contributed to it, from the Canon Law, many of the principles which lie deepest in its structure. The Roman law, more fertile than the Canon Law in rules applicable to secular disputes, was not seldom resorted to by a later generation of Chancery judges, amid whose recorded dicta we of- ten find entire texts from the Corpus Juris Civilis CHAF. III. EQUITY. 45 imbedded, with their terms unaltered, though their origin is never acknowledged. Still more recently, and particularly at the middle and during the latter half of the 18th century, the mixed systems of jurispru- dence and morals constructed by the publicists of the Low Countries appear to have been much studied by English lawyers, and from the chancellorship of Lord Talbot to the commencement of Lord Eldon's chancellorship these works had considerable effect on the rulings of the Court of Chancery. The system, which obtained its ingredients from these various quarters, was greatly controlled in its growth by the necessity imposed on it of conforming itself to the analogies of the common law, but it has always an- swered the description of a body of comparatively novel legal principles claiming to override the older jurisprudence of the country on the strength of an intrinsic ethical superiority. The Equity of Rome was a much simpler structure, and its development from its first appearance can be much more easily traced. Both its character and its history deserve attentive examination. It is the| root of several conceptions which have exercised profound influence on human thought, and through human thought have seriously affected the destinies of mankind. The Romans described their legal system as con- sisting of two ingredients. " All nations," says the 46 LAW OF NATIONS AND OF NATURE. chap. hi. Institutional Treatise published under the authority of the Emperor Justinian, " who are ruled by laws and customs, are governed partly by their m the gross ingredients with which they were mingled was a sense of simplicity and harmonv ; yet it was not on account of their simplicity and harmony that these \\tii^^ t 74 MODERN HISTORY OP NATURAL LAW. chap. xv. finer elements were primarily respected, but on the I score of their descent from the aboriginal reign of Nature. This confusion has not been successfully explained away by the modem disciples of the juris- consults, and in truth modem speculations oil the Law of Nature betray much more indistincjEhess of perception and are vitiated by much more hop^j^ess ambiguity of languas^e than the Roman la^vyers can bej^/oha^ih. There .. «o.e :^.e« o. the subject who attempt to evade the fundamental* difficulty by contending that the code of Nature exists in the future and is the goal to which all civil laws are moving, but this- is to reverse the assump- tions on which the old theory rested or rather perhaps to mix together two inconsistent theories. The tendency to look not to the past but to the future for types of perfection was brought into the world by Christianity. Ancient literature gives few or no hints of a belief that the progress of society is necessarily from worse to better. But the importance of this theory to mankind has been very much greater than its philosophical de- ficiencies would lead us to expect. Indeed, it is not easy to say what turn the history of thought, and therefore, of the human race, would have taken, if the belief in a law natural had not become universal in the ancient world. , • There are two special dangers to which law, and 1 J" 1./ .^ CHAP. IV. PERILS OF EARLY SOCIETY. 75 society which is held together by law, appear to be liable in their infancy. One of them is t hat law may be too rapidly develope d. This occurred with the codes of the more progressive Greek coinmu- * nities, which disembarrassed themselves with as- tonishing facility from cumbrous forms of procedure and needless terms of art, and soon ceased to attach . tions. It was not for the ultimate advantage of mankind that they did so, though the immediate benefit conferred on their citizens may have been considerable. One of the rarest qualities of national character is the capacity for applying and working out the law, as such, at the cost of constant mis- carriages of abstract justice, without at the same time losing the hope or the wish that law may be conformed to a higher ideal. The Greek intellect, > with all its nobility and elasticity, was quite unable to confine itself within the strait waistcoat of a legal I formula ; and, if we may judge them by the popular courts of Athens of whose working we possess ac- curate knowledge, the Greek tribunals exhibited the strongest tendency to confound law and fact. The remains of the Orators and the forensic common- places preserved by Aristotle in his Treatise on Rhetoric, show that questions of pure law were con- stantly argued on every consideration which could possibly influence the mind of the judges. No durable 76 NATURAL LAW OF THE JURISCONSULTS, chap. iv. system of jurisprudence could be produced in this way. A community which never hesitated to relax rules of written law whenever they stood in the way of an ideally perfect decision on the facts of particular cases, would only, if it bequeathed any body of judicial principles to posterity, bequeath one con- sisting of the ideas of right and wrong which hap- pened to be prevalent at the time. Such a juris- prudence would contain no framework to which the more advanced conceptions of subsequent ages could be fitted. It would amount at best to a philosophy, marked with the imperfections, of the civilisation under which it grew up. Few national societies have had their jurispru- dence menaced by this peculiar danger of precocious maturity and untimely disintegration. It is cer- tainly doubtful whether the Romans were ever seriously threatened by it, but at any rate they had adequate protection in their theory of Natural Law. For the Natural Law of the jurisconsults was dis- tinctly conceived by them as a system which ought gradually to absorb civil laws, without superseding them so long as they remained unrepealed. There was no such impression of its sanctity abroad, that an appeal to it would be likely to overpower the mind of a judge who was charged with the superin- tendence of a particular litigation. The value and serviceableness of the conception arose from its cnAP. IV. LAW OF NATURE. 77 keeping before the mental vision a type of perfect law, and from its inspiring the hope of an indefinite approximation to it, at the same time that it never tempted the practitioner or the citizen to deny the obligation of existing laws which had not yet been ad- justed to the theory. It is important too to observe that this model system, unlike many of those which have mocked men's hopes in later days, was not entirely the product of imagination. It was never thought of as founded on quite untested principles. The notion was that it underlay existing law and must be looked foi: through it. Its functions were in short remedial, not revolutionary or anarchical. And this, unfortunately, is the exact point at which the modem view of a Law of Nature has often ceased to resemble the ancient. The other liability to which the infancy of society is exposed has prevented or arrested the progress of far the greater part of mankind. The rigidit y of prim itive law,^ arising chiefly from its early associa- tion and identification with religion, has chained down the mass of the human race to those views of life and conduct which they entertained at the time when their usages were first consolidated into a systematic form. There were one or two races exempted by a marvellous fate from this calamity, and grafts from these stocks have fertilised a few modem societies, but it is still true that, over the V K'- I( 78 HISTORY OF LAW OF NATURE. chat. iv. larger part of the world, the perfection of law has always been considered as consisting in adherence to the ground plan supposed to have been marked out by the original legislator. If intellect has in such cases been exercised on jurisprudence, it has uniformly prided itself on the subtle perversity of the conclu- sions it could build on ancient texts, without dis- coverable departure irom their literal tenour. I know no reason why the law of the Romans should be su- perior to the laws of the Hindoos, unless the theory of Natural Law had given it a type of excellence diflferent from the usual one. In this one excep- tional instance, simplicity and s)nnmetry were kept before the eyes of a society whose influence on man- kind was destined to be prodigious from other causes, as the characteristics of an ideal and absolutely per- fect law. It is impossible to overrate the importance to a nation or profession of having a distinct object to aim at in the pursuit of improvement. The secret of Bentham's immense influence in England during the past thirty years is his success in placing such an object before the country. He gave u s a clear r ule of refo rm. English lawyers of the last century were probably too acute to be blinded by the para- doxical commonplace that English law was the per- fection of human reason, but they acted as if they believed it for want of any other principle to pro- CHAP. ;v. BENTHAMISM. 75) ceed upon. Bentham made the good of the com- I munity take precedence of every other object, and thus gave escape to a current which had long been trying to find its way outwards. It is not an altogether fanciful comparison if we call the assumptions we have been describing the ancient counterpart of Benthamism. The Roman theory guided men's efforts in the same direction as the theory put into shape by the Englishman ; its prac- tical results were not widely different from those which would have been attained by a sect of law- reformers who maintained a steady pursuit of the general good of the community. It would be a mistake, however, to suppose it a conscious anticipa- tion of Bentham's principles. The happiness of mankind is, no doubt, sometimes assigned, both in the popular and in the legal literature of the Romans, as the proper object of remedial legislation, but it is very remarkable how few and faint are the testimonies to this principle compared with the tributes which are constantly offered to the overshadowinff claims of the Law of JSatuce* It was not to anything resembling philanthropy, but to their sense of simplicity and harmony — of what they significantly termed " ele- <^/^ gance " — that the Roman jurisconsults freely surren- dered themselves. The coincidence of their labours with those which a more precise philosophy would . 80 HISTORY. OF LAW OF NATURE. chap. iv. have counselled has been part of the good fortune of mankind. Turning to the modem history of the law of nature, we find it easier to convince ourselves of the vast- ness of its influence than to pronounce confidently whether that influence has been exerted for good or for evil. The doctrines and institutions which may be attributed to it are the material of some of the most violent controversies debated in our time, as L will be seen when it is stated that the theory of j !, Natural Law is the source of almost all the special ,' ideas as to law, politics, and society which France during the last hundred years has been the instru- ment of diffusing over the western world. The part played by jurists in French history, and the sphere of jural conceptions in French thought, have always been remarkably large. It was not indeed in France, but in Italy, that the juridical science of modern Europe took its rise, but of the schools founded by emissaries of the Italian universities in all parts of the continent, and attempted (though vainly) to be set up in our island, that established in France pro- duced the greatest effect on the fortunes of the country. The lawyers of France immediately formed a strict alliance with the kings of the house of Capet, and it was as much through their assertions of royal prerogative, and through their interpretations of the rules of feudal succession, as by the power of the CHAP. IV. THE FRENCH LAWYERS. 81 sword, that the French monarchy at last grew to- gether out of the agglomeration of provinces and dependencies. The enormous advantage which their understanding with the lawyers conferred on the French kings in the prosecution of their struggle with the great feudatories, the aristocracy, and the church, can only be appreciated if we take into account the ideas which prevailed in Europe far down into the middle ages. There was, in the first place, a great enthusiasm for generalisation and a^ curious admiration for all general propositions, and conse- quently, m the held ol' law, an involuntary reverence for every general formula which seemed to embrace and sum up a number of the insulated rules which were practised as usages in various localities. Such general formulas it was, of course, not difficult for practitioners familiar with the Corpus Juris or the Glosses to supply in almost any quantity. There was, however, another cause which added yet more consi- derably to the lawyers' power. At the period of which we are speaking, there was universal vagueness of ideas as to the degree and nature of the authority residing in written texts of law. For the most part, the peremptory preface, Ita scriptum est, seems to i have been sufficient to silence all objections. Where a mind of our own day would jealously scrutinise the formula which had been quoted, would inquire its source, and would (if necessary) deny that the body S2 HISTORY OF LAW OF NATURE. chap, iv* of law to which it belonged had any authority to supersede local customs, the elder jurist would not probably have ventured to do more than question the applicability of the rule, or at best cite some counter- proposition from the Pandects or the Canon Law. It is extremely necessary to bear in mind the uncer- tainty of men's notions on this most important side of juridical controversies, not only because it helps to explain the weight which the lawyers threw into the monarchical scale, but on account of the light which it sheds on several curious historical problems. The motives of the author of the Forged Decretals and his extraordinary success are rendered more intelli- gible by it. And, to take a phenomenon of smaller interest, it assists us, though only partially, to under- stand the plagiarisms of Bracton. That an English writer of the time of Henry III. should have been able to put off on his countrymen as a compendium of pure English law a treatise of which the entire form and a third of the contents were directly bor- rowed from the Corpus Juris, and that he should have ventured on this experiment in a country where the systematic study of the Roman law was formally proscribed, will always be among the most hopeless enigmas in the history of jurisprudence; but still it is something to lessen our surprise when we compre- hend the state of opinion at the period as to the obligatory force of written texts, apart from all con- sideration of the source whence they were derived. ■aiBi BAP. IV. THE FRENCH LAWYERS. 88 When the kings of France had brought their long straggle for supremacy to « successful close, an epoch which may be placed roughly at the accession of the branch of Valois-AngoulSme to the throne, the situa- tion of the French jurists was peculiar and continued to be so down to the outbreak of the revolution. On the one hand, they formed the best instructed and nearly the most. powerful class in the nation. They had made good their footing as a privileged order by the side of the feudal aristocracy, and they had assured their influence by an organisation which distributed their profession over France in great chartered corpo- ^ rations possessing large defined powers and still larger indefinite claims. In all the qualities of the advocate, the judge, and the legislator, they far excelled their compeers throughout Europe. Their juridical tact, their ease of expression, their fine sense of analogy and harmony, and (if they may be judged by the highest names among them) their passionate devotion to their conceptions of justice, were as remarkable as the singular variety of talent which they included, a variety covering the whole ground between the oppo- site poles of Cujas and Montesquieu, of D'Aguesseau and DumQJilin. But, on the other hand, the system of laws which they had to administer stood in striking contrast with the habits of mind which they had cul- tivated. The France which had been in great part constituted by their efforts was smitten with the G 2 84 HISTORY OF LAW OF NATURE. CHAP. IV. I curse of an anomalous and dissonant jurisprudence beyond every other country in Europe. One great » division ran through the country and separated it into Pays du Droit Ecrit and Pays du Droit Coutu- \ mier^ the first acknowledging the written Roman law as the basis of their jurisprudence, the last admitting it only so far as it supplied general forms of expres- sion, and courses of juridical reasoning, which were reconcileable with the local usages. The sections thus formed were again variously subdivided. In the Pays du Droit Coutumier province differed from province, county from county, mimicipality from municipality, in the nature of its customs. In the Pays du Droit Ecrit the stratum of feudal rules which overlay the Roman law was of the most miscel- ^ laneous composition. No such confusion as this ever f existed in England. In Germany it did exist, but was too much in harmony with the deep political and religious divisions of the country to be lamented or even felt. It was the special peculiarity of France that an extraordinary diversity of laws continued without sensible alteration while the central authority of the monarchy was constantly strengthening itself, while rapid approaches were being made to complete /administrative unity, and while a fervid national ' spirit had been developed among the people. The contrast was one which fructified in many serious results, and among them we must rank the effect which it produced on the minds of the French 1 CHAP. IV. THE FRENCH LAWYERS. 85 lawyers. Their speculative opinions and their intel- lectual bias were in the strongest opposition to their interests and professional habits. With the keenest sense and the fullest recognition of those perfections of jurisprudence which consist in simplicity and uniformity, they believed, or seemed to believe, that the vices which actually infested French law were ineradicable ; and in practice they often resisted the reformation of abuses with an obstinacy which was not shown by many among their less enlightened countrymen. But there was a way to reconcile these contradictions. They became passionate enthusiasts for Natural Law. The Law of Nature overleapt aU provincial and municipal boundaries ; it disregarded all distinctions between noble and burgess, between burgess and peasant ; it gave the most exalted place to lucidity, simplicity and system ; but it committed its devotees to no specific improvement, and did not directly threaten any venerable or lucrative technica- lity. Natural law may said to have become the common law of France, or, at all events, the admis- sion of its dignity and claims was the one tenet which all French practitioners alike subscribed to. The language of the pras-revolutionary jurists in its eulogy is singularly unqualified, and it is remarkable that the writers on the Customs, who often made it their duty to speak disparagingly of the pure Roman law, speak even more fervidly of Nature and her rules than G 3 /« 80 HISTORY OF LAW OF NATURE. chap, m the civilians who professed an exclusive respect for the Digest and the Code. Dumoulin, the highest of all authorities o n old Fr ench Customary Law, has some extravagant passages on the Law of Nature; and his panegyrics have a peculiar rhetorical turn which indicates a considerable departure from the caution of the Roman jurisconsults. The hypothesis of a Natural Law had become not so much a theory guiding practice as an article of speculative faith, and accordingly we shall find that, in the transfor- mation which it more recently underwent, its weakest parts rose to the level of its strongest in the esteem of its supporters. The eighteenth century was half over when the most critical period in the history of Natural Law was reached. Had the discussion of the theory and of its consequences continued to be exclusively the em- ployment of the legal profession, there would pos- sibly have been an abatement of the respect which it commanded ; for by this time the Esprit des Lois had appeared. Bearing in some exaggerations the marks of the excessive violence with which its author's mind had recoiled from assumptions usually suf- fered to pass without scrutiny, yet showing in some ambiguities the traces of a desire to compromise with existing prejudice, the book of Montesquieu, with aU its defects, still proceeded on that Historical Method before which the Law of Nature has never maintained its footing for an instant. Its influence CHAP. IV. ROUSSEAU. 87 on thought ought to have been as great as ita general popularity ; but, in fact, it was never allowed time to put it forth, for the counter-hypothesis which it seemed destined to destroy passed sud- denly from the forum to the street, and became the key-note of controversies far more exciting than are ever agitated in the courts or the schools. The person who launched it on its new career was that remarkable man who, without learning, with few virtues, and with no strength of character, has ' nevertheless stamped himself ineffaceably on history by the force of a vivid imagination, and by the help of a genuine and burning love for his fellow-men, for which much will always have to be forgiven him. We have never seen in our own generation — indeed the world has not seen more than once or twice in all the course of history — a literature which has exer- cised such prodigious influence over the minds of men, over every cast and shade of intellect, as that which emanated from Rousseau between 1749 and ^/ 1762. It was the first attempt to re-erect the edifice of human belief after the purely iconoclastic efforts commenced by Bayle, and in part by our own Locke, and consummated by Voltaire ; and besides the supe- riority which every constructive effort will always enjoy over one that is merely destructive, it possessed the immense advantage of appearing amid an all but universal scepticism as to the soundness of all G 4 88 HISTORY OF LAW OF NATURE. chap. iv. foregone knowledge in matters speculative. Now, in all the speculations of Rousseau, the central figure, whether arrayed in an English dress as the signa- tary of a social compact, or simply stripped naked of all historical qualities, is uniformly Man, in a sup- "X pos ed state of natur e. Every law or institution which would misbeseem this imaginary being under these ideal circumstances is to be condemned as having lapsed from an original perfection; every transformation of society which would give it a closer resemblance to the worid over which the creature of Nature reigned, is admirable and worthy to be effected at any apparent cost. The theory is still that of the Roman lawyers, for in the phan- tasmagoria with which the Natural Condition is peopled, every feature and characteristic eludes the mind except the simplicity and harmony which pos- sessed such charms for the jurisconsult; but the theory is, as it were, turned upside down. It is not / the Law of Nature, but the S tate of Natu re, which is now the primary subject of contemplation. The Roman had conceived that by carefid observation of existing institutions parts of them could be singled out which either exhibited already, or could by judicious purification be made to exhibit, the vestiges of that reign of nature whose reality he faintly affirmed. Rousseau's belief was that a perfect social order could be evolved from the unassisted considera- CHAP. ir. THEORIES OF ROUSSEAU. 89 tion of the natural state, a social order wholly irre- spective of the actual condition of the world and wholly unlike it. The great difference between the views is that one bitterly and broadly condemns the present for its unlikeness to the ideal past ; while the other, assuming the present to be as necessary as the 1 past, does not affect to disregard or censure it. It is not worth our while to analyse with any particu- larity that philosophy of politics, art, education, ethics, and social relation which was constructed on the basis of a state of nature. It still possesses singular fascination for the looser thinkers of every country, and is no doubt the parent, more or less remote, of almost all the prepossessions which im- pede the employment of the Historical Method of in- quiry, but its discredit with the higher minds of our day is deep enough to astonish those who are familiar with the extraordinary vitality of speculative error. Perhaps the question most frequently asked nowa- days is not what is the value of these opinions, but what were the causes which gave them such over- shadowing prominence a hundred years ago. The \ answer is, I conceive, a simple one. The study which in the last century would best have corrected the misapprehensions into which an exclusive atten- tion to legal antiquities is apt to betray was the st udy of reli gion. But Greek religion, as then under- stood, was dissipated in imaginative myths. The 90 HISTORY OF LAW OF NATURE. chap. iv. Oriental religions^ if noticed at all, appeared to be lost in vain cosmogonies. There was but one body of primitive records which was worth studying -r- the early history of the Jews. But resort to this was prevented by the prejudices of the time. One of the few characteristics which the school of Rousseau had in coiynon with the school of Vqltaire was an utter disdain of all religious antiquities; and, more than all, of those of the Hebrew race. It is well known that it was a point of honour with the reasoners of that day to assume not merely that the institutions called after Moses were not divinely dictated, nor even that they were codified at a later date than that attributed to them, but that they and the entire Pentateuch were a gratuitous forgery, executed after the return from the Captivity. Debarred, therefore, from one chief security against speculative delusion, the philosophers of France, in their eagerness to escape from what they deemed a superstition of the priests, flung themselves headlong into a superstition of the lawyers. But though the philosophy founded on the hypo- thesis of a state of nature has fallen low in general esteem, in so far as it is looked upon under its coarser and more palpable aspect, it does not follow that in its subtler disguises it has lost plausibility, popu- larity, or power. I believe, as I have said, that it is still the ffreat antagonist of the Historical Metho d : cnAT. IV. THE FRENCH REVOLUTION. 91 and whenever (religious objections apart) any mind is seen to resist or contemn that mode of investi- gation, it will generally be found under the influence of a prejudice or vicious bias traceable to a conscious or unconscious reliance on a non-historic, natural, condition of society or the individual. It is chiefly, however, by allying themselves with political and social tendencies that the doctrines of Nature and her law have preserved their energy. Some of these tend- encies they have stimulated, others they have actually created, to a great number they have given expres- sion and form. They visibly enter largely into the ideas which constantly radiate from France over the civilised world, and thus become part of the general body of thought by which its civilisation is modified. The value of the influence which they thus exercise over the fortunes of the race is of course one of the points which our age debates most warmly, and it is beside the purpose of this treatise to discuss it. Looking back, however, to the period at which the theory of the state of nature acquired the maximum '' ■ Kill ^. .1 iir-"^' — •■■ of political importance, there are few who will deny that it helped most powerfully to bring about the grosser disappointments of which the first French Revolution was fertile. It gave birth, or intense stimulus, to the vices of mental habit all but uni- versal at the time, disdain of positive law, impatience of experience, and the preference of a priori to all 92 HISTORY OF LAW OF NATURE. chap. iv. other reasoning. In proportion too as this philo- sophy fixes its grasp on minds which have thought less than others and fortified themselves with smaller observation, its tepdency is to become distinctly anarchical. It is surprising to note how many of the Sophismes Anarchiques which Dumont published for Bentham, and which embody Bentham's exposure of errors distinctively French, are derived from the Roman hypothesis in its French transformation, and are unintelligible unless referred to it. On this point too it is a curious exercise to consult the Moniteur during the principal eras of the Revolution. The ap- peals to the Law and State of Nature become thicker as the times grow darker. They are comparatively rare in the Constituent Assembly; they are much more frequent in the Legislative ; in the Convention, amid the din of debate on conspiracy and war, they are perpetual, y There is a single example which very strikingly ^^ illustrates the effects of the theory of natural law on modem society, and indicates how very far are those effects from being exhausted. There cannot, I con- ceive, be any question that to the assumption of a h Law Natural we owe the doctrine of the fundamental t. r equality of human beings. That " all men are equal" is one of a large number of legal propositions which, in progress of time, have become political. The Ro- man jurisconsults of the Antonine era lay down that .:/ ■■■ ' CHAP. IV. EQUALITY OF MEX. 93 " omnes homines naturft aequales sunt," but in their eyes this is a strictly juridical axiom. They intend to affirm that, under the hypothetical Law of Nature, and in so far as positive law approximates to it, the arbitrary distinctions which the Roman Civil Law maintained between classes of persons cease to have a legal existence. The rule was one of considerable importance to the Roman practitioner, who required to be reminded that, wherever Roman jurisprudence was assumed to conform itself exactly to the code of Nature, there was no difference in the contemplation of the Roman tribunals between citizen and foreigner, between freeman and slave, between Agnate and Cog- j nate. The jurisconsults who thus expressed themselves most certainly never intended to censure the social arrangements under which civil law fell somewhat short of its speculative type ; nor did they apparently believe that the world would ever see human society compktely assimilated to the economy of nature. But when the doctrine of human equality makes its appearance in a modem dress it has evidently clothed itself with a new shade of meaning. Where the Ro- man jurisconsult had written " sequales sunt," mean- ing exactly what he said, the modem civilian wrote "all men are equal" in the sense of "all men ought to be equal." The peculiar Roman idea that na- tural law coexisted with civil law and gradually ab- sorbed it, had evidently been lost sight of, or had 1 I fi ■;/- 94 HISTORY OF LAW OF NATURE. chap. iv. become unintelligible, and the words which had at most conveyed a theory concerning the origin, com- position, and development of human institutions, were beginning to express the sense of a great standing wrong suffered by mankind. As early as the beginnmg of the fourteenth century, the current language con- cerning the birth-state of men, though visibly intended to be identical with that of Ulpian and his contempo- raries, has assumed an altogether different form and meaning. The preamble to the celebrated ordinance of King Louis Hutin enfranchising the serfs of the royal domains would have sounded strangely to Roman ears. " Whereas, according to natural law, everybody ought to be bom free ; and by some usages and customs which, from long antiquity, have been introduced and kept until now in our realm, and per- adventure by reason of the misdeeds of their prede- cessors, many persons of our common people have fallen into servitude, therefore. We, &c." This is the enunciation not of a legal rule but of a political dogma; and from this time the equality of men is spoken of by the French lawyers just as if it were a political truth which happened to have been preserved among the archives of their science. Like all other deductions from the hypothesis of a Law Natural, and like the belief itself in a Law of Nature, it was lan- guidly assented to and suffered to have little influence on opinion and practice until it passed out of the possession of the lawyers into that of the literary CHAP. IV. DECLARATION OF INDEPENDENCE. 95 men of the eighteenth century and of the public which sat at their feet. With them it became the most distinct tenet of their creed, and was even regarded as a summary of all the others. It is probable, however, that the power which it ultimately acquired over the events of 1789 was not entirely owing to its popularity in France, for in the middle of the century it passed over to America. The American lawyers of the time, and particularly those of Virginia, appear to have possessed a stock of knowledge which differed chiefly from that of their English contemporaries in including much which could only have been derived from the legal literature of continental Europe. A very few glances at the writings of Jefferson will show how strongly his mind was affected by the semi-juri- dical, semi-popular opinions which were fashionable in France, and we cannot doubt that it was sympathy with the peculiar ideas of the French jurists which led him and the other colonial lawyers who guided the course of events in America to join the specially French assumption that " all men are born equal " with the assumption, more familiar to Englishmen, that " all men are bom free," in the very first lines of their Declaration of Independence. The passage was one of great importance to the history of the doctrine before us. The American lawyers, in thus prominently and emphatically affirming the fun- damental equality of human beings, gave an im- pulse to political movements in their own country. 96 HISTORY OF LAW OF NATURE. chap. iv. and in a less degree in Great Britain, which is far from having yet spent itself; but besides this they returned the dogma they had adopted to its home in France, endowed with vastly greater energy and en- joying much greater claims on general reception and respect. Even the more cautious politicians of the first Constituent Assembly repeated Ulpian's proposition as if it at once commended itself to the instincts and intuitions of mankind ; and of all the " principles of 1789 " it is the one which has been least strenuously assailed, which has most thoroughly leavened modem opinion, and which promises to modify most deeply the constitution of societies and the politics of states. fj J' I The gran dest fun ction of the Law of Nature was / discharged iJTg^g birth to modem International Law and to the modern Law of War, but this part of its eflfects must here be dismissed with consider- ation very unequal to its importance. Among the postulates which form the foundation of International Law, or of so much of it as retains the figure which it received from its original archi- tects, there are two or three of preeminent import- ance. The first of all is expressed in the position that there is a determinable Law of Nature. Gro- tius and his successors took the assumption directly from the Romans, but they differed widely from the Roman jurisconsults and from each other in their ideas as to the mode of determination. The I CTAP. IV. INTERNATIONAL LAW. 97 ambition of almost every Publicist who has flourished since the revival of letters has been to provide new and more manageable definitions of Nature and of her law, and it is indisputable that the conception in passing through the long series of writers on Public Law has gathered round it a large accretion, con- sisting of fragments of ideas derived from nearly every theory of ethics which has in its turn taken possession of the schools. Yet it is a remarkable proof of the essentially historical character of the conception that, after all the efforts which have been made to evolve the code of nature from the necessary characteristics of the natural state, so much of the result is just what it would have been if men had been satisfied to adopt the dicta of the Roman lawyers without questioning or reviewing them. Setting aside the Conventional or Treaty Law of Nations, it is surprising how large a part of the system is made up of pure Roman law. Wherever there is a doctrine of the jurisconsults affirmed by them to be harmony with the Jus Gentium, trie publicists have found a reason for borrowing it, , however plainly it may bear the marks of a distinc- tively Roman origin. We may observe too that the ■ derivative theories are afflicted with the weakness of the primary notion. In the majority of the Publicists, the mode of thought is still "mixed." In studying these writers, the great difficulty is H 98 HISTORY OF LAW OF NATURE. chap. iv. always to discover whether they are discussing law or morality — whether the state of international re- lations they describe is actual or ideal — whether they lay down that which is, or that which, in their opinion, ought to be. The assumption that Natural Law is binding on states inter se is the next in rank of those which underlie International Law. A series of assertions or admissions of this principle may be traced up to the very infancy of modem juridical science, and at first sight it seems a direct inference from the teaching of the Romans. The civil condition of society being distinguished from the natural by the fact that in the first there is a distinct author of law, while in the last there is none, it appears as if the moment a number of units were acknowledged to obey no com- mon sovereign or political superior they were thrown back on the ulterior behests of the Law Natural. States are such units ; the hypothesis of their inde- pendence excludes the notion of a common lawgiver, and draws with it, therefore, according to a certain range of ideas, the notion of subjection to the primeval order of nature. The alternative is to consider in- dependent communities as not related to each other by any law, but this condition of lawlessness is ex- actly the vacuum which the Nature of the juris- consults abhorred. There is certainly apparent reason for thinking that if the mind of a Eoman lawyer CHAP. IV. INTERNATIONAL LAW. 99 rested on any sphere from which civil law was banished, it would instantly fill the void with the ordinances of Nature. It is never safe, however, to assume that conclusions, however certain and im- mediate in our own eyes, were actually drawn at any period of history. No passage has ever been ad- duced from the remains of Roman law which, in my judgment, proves the jurisconsults to have believed natural law to have obligatory force between inde- pendent commonwealths ; and we cannot but see that to citizens of the Roman empire, who regarded their sovereign's dominions as conterminous with civili- sation, the equal subjection of states to the Law of Nature, if contemplated at all, must have seemed at most an extreme result of curious speculation. The truth appears to be that modem International Law, undoubted as is its descent from Roman law, is only connected with it by an irregular filiation. The early modern interpreters of the jurisprudence of Rome, misconceiving the meaning of Jus Gentium, assumed without hesitation that the Romans had bequeathed to them a system of rules for the adjustment of international transactions. This " Law of Nations " was at first an authority which had formidable com- petitors to strive with, and the condition of Europe was long such as to preclude its universal reception. Gradually, however, the western world arranged itself in a form more favourable to the theory of the H 2 100 HISTORY OF LAW OF NATURE. chap. it. civilians ; circumstances destroyed the credit of rival doctrines ; and at last, at a peculiarly felicitous con- juncture, Ayala and Grotius were able to obtain for it the enthusiastic assent of Europe, an assent which has been over and over again renewed in every variety of solemn engagement. The great men to whom its triumph is chiefly owing attempted, it need scarcely be said, to place it on an entirely new basis, and it is un- questionable that in the course of this displacement they altered much of its structure, though far less of it than is commonly supposed. Having adopted from the Antonine jurisconsults the position that the Jus Gentium and the Jus Naturae were identical, Grotius, with his immediate predecessors and his im- mediate successors, attributed to the Law of Nature an authority which would never perhaps have been claimed for it, if " Law of Nations " had not in that age been an ambiguous expression. They laid down unreservedly that Natural Law is the code of states, and thus put in operation a process which has con- tinued almost down to our own day, the process of engrafting on the international system rules which are supposed to have been evolved from the un- assisted contemplation of the conception of Nature. There is too one consequence of immense practical importance to mankind which, though not unknown during the early modern history of Europe, was never clearly or universally acknowledged till the doctrines of the Grotian school had prevailed. If CHAP. IV. INTERNATIONAL LAW. 101 the society of nations is governed by Natural Law, the atoms which compose it must be absolutely equal. Men under the sceptre of Nature are all equal, and accordingly conunonwealths are equal if the inter- national state be one of nature. The proposition that independent communities, however different in size and power, are all equal in the view of the law of nations, has largely contributed to the happiness of mankind, though it is constantly threatened by the political tendencies of each successive age. It is a doctrine which probably would never have obtained a secure footing at all if International Law had not been entirely derived from the majestic claims of Nature by the Publicists who wrote after the revival of letters. On the whole, however, it is astonishing, as I have observed before, how small a proportion the additions made to International Law since Grotius's day bear to the ingredients which have been simply taken from the most ancient stratum of the Roman Jus Gentium. A cquisition of te rr i to r y has always been the great \i spur of national ambition, and the rules which govern this acquisition, together with the rules which mode- rate the wars in which it too frequently results, are merely transcribed from the part of the Roman law which treats of the modes of acquiring property jurg gentium. These modes of acquisition were obtained by the elder jurisconsults, as I have attempted to u 3 102 HISTORY OF LAW OF NATURE. chap. iv. explain, by abstracting a common ingredient from the usages observed to prevail among the various tribes surrounding Rome ; and, having been classed on account of their origin in the " law common to all nations," they were thought by the later lawyers to fit in, on the score of their simplicity, with the more recent conception of a Law Natural. They thus made their way into the modem Law of Nations, and the result is that those parts of the international system which refer to dominion^ its nature, its limi- tations, the modes of acquiring and securing it, are pure Roman Property Law — so much, that is to say, of the Roman Law of Property as the Antonine juris- consults imagined to exhibit a certain congruity with the natural state. In order that these chapters of International Law may be capable of application, it is necessary that sovereigns should be related to each other like the members of a group of Roman pro- prietors. This is another of the postulates which lie at the threshold of the International Code, and it is also one which could not possibly have been sub- scribed to during the first centuries of modem European history. It is resolvable into the double proposition that " sovereignty is territorial," i. e. that it is always associated with the proprietorship of a limited portion of the earth's surface, and that " sove- reigns i7iter 86 are to be deemed not paramount^ but absolute^ owners of the state's territory." CHAP. IV. INTERNATIONAL LAW- 103 Many contemporary writers on International Law tacitly assume that the doctrines of their system, founded on principles of equity and common sense, were capable of being readily reasoned out in every stage of modem civilisation. But this assumption, while it conceals some real defects of the inter- national theory, is altogether untenable so far as regards a large part of modern history. It is not true that the authority of the Jus Gentium in the concerns of nations was always uncontradicted; on the contrary, it had to struggle long against the claims of several competing systems. It is again not true that the territorial character of sovereignty was always recognised, for long after the dissolution of the Roman dominion the minds of men were under the empire of ideas irreconcileable with such a conception. An old order of things, and of views founded on it, had to decay — a new Europe, and an apparatus of new notions congenial to it, had to spring up — before two of the chiefest postulates of International Law could be universally conceded. It is a consideration well worthy to be kept in view, that during a large part of what we usually | term modem history no such conception was enter- tained as that of " territorial sovereignty.^^ Sove- reignty was not associated with dominion over a portion or subdivision of the earth. The world had lain for so many centuries under the shadow of n 4 104 HISTORY OF LAW OF NATURE. chap. ir. Imperial Kome as to have forgotten that distribu- tion of the vast spaces comprised in the empire which had once parcelled them out into a number of independent commonwealths, claiming immunity from extrinsic interference, and pretending to equality of national rights. After the subsidence of the bar- barian irruptions, the notion of sovereignty that prevailed seems to have been twofold. On the one hand it assumed the form of what may be called I " fnft^-sovereignty." The Franks, the Burgundians, the Vandals, the Lombards, and Visigoths were masters, of course, of the territories which they occupied, and to which some of them have given a geographical appellation; but they based no claim of right upon the fact of territorial possession, and indeed attached no importance to it whatever. They appear to have retained the traditions which they brought with them from the forest and the steppe, and to have still been in their own view a patriarchal society, a nomad horde, merely encamped for the time upon the soil which aflfbrded them sustenance. Part of Transalpine Gaul, with part of Germany, had now become the country de facto occupied by the Franks — it was France; but the Merovingian line of chief- tains, the descendants of Clovis, were not Kings of France, they were Kings of the Franks. The alter- native to this peculiar notion of sovereignty appears to have been — and this is the important point — the CHAP. IV. TERRITORIAL SOVEREIGNTY. 105 idea of universal dominion. The moment a monarch departed from the special relation of chief to clans- men, and became solicitous, for purposes of his own, to invest himself with a novel form of sovereignty, the only precedent which suggested itself for his adoption was the domination of the Emperors ef Rome. To parody a common quotation, he became ^^ aut Ccesar aut nullus.** Either he pretended to the mil prerogative of the Byzantine Emperor, or he had no political status whatever. In our own age, when a new dynasty is desirous of obliterating the prescriptive title of a deposed line of sovereigns, it takes its designation from the people, instead of the territory. Thus we have Emperors and Kings of the French, and a King of the Belgians. At the period of which we have been speaking, under similar cir- cumstances, a diflferent alternative presented itself. The Chieftain who would no longer call himself King of the tribe must claim to be Emperor of the world. Thus, when the hereditary Mayors of the Palace had ceased to compromise with the monarchs they had long since virtually dethroned, they soon became unwilling to call themselves Kings of the Franks, a title which belonged to the displaced Merovings ; but they could not style themselves Kings of France, for such a designation, though apparently not unknown, was not a title of dignity. Accordingly they came forward as aspirants to universal empire. Their 106 HISTORY OF LAW OF NATURE. chap. iv. motive has been greatly misapprehesded. It has been taken for granted by recent French writers that Charlemagne was far before his age, quite as much in the character of his designs as in the energy with which he prosecuted them. Whether it be true - or not that anybody is at any time before his age, it is certainly true that Charlemagne, in aiming at an unlimited dominion, was emphatically taking the only course which the characteristic ideas of his age per- mitted him to follow. Of his intellectual eminence there cannot be a question, but it is proved by his acts and not by his theory. These singularities of view were not altered on the partition of the inheritance of Charlemagne among his three grandsons. Charles the Bald, Lewis, and Lothair were still theoretically — if it be proper to use the word — Emperors of Rome. Just as the Caesars of the Eastern and Western Empires had each been de jure emperor of the whole world, with de facto control over half of it, so the three Carlovin- gians appear to have considered their power as limited, but their title as unqualified. The same speculative universality of sovereignty continued to be associated with the Imperial throne after the second division on the death of Charles the Fat, and, indeed, was never thoroughly dissociated from it so long as the empire / 1 of Germany lasted. Territorial sovereignty — the I view which connects sovereignty with the possession CBAF. IV. TERRITORIAL SOVEREIGNTY. 107 o£ a limited porti on of the earth's su rfn^q Tran, tliff- ^ctly an oUshoot, though a tardy one, oi feud alism . , , This might nave "Veen expected h priori^ for it was 1 1 fC*-^ feudalism which for the first time linked personal duties, and by consequence personal righ ts, to the ow nership of land. Whatever be the proper view of ifT origin andlegal nature, the best mode of vividly picturing to ourselves the feudal organisation is to begin with the basis, to consider the relation of the tenant to the patch of soil which created and limited his services — and then to mount up, through narrow- ing circles of super-feudation, till we approximate to the apex of the system. Where that summit exactly was during the later portion of the dark ages it is not easy to decide. Probably, wherever the conception of tribe sovereignty had really decayed, the topmost point was always assigned to the supposed successor of the CsBsars of the West. But before long, when the actual sphere of Imperial authority had immensely contracted, and when the emperors had concentrated the scanty remains of their power upon Germany and North Italy, the highest feudal superiors in all the outlying portions of the former Carlovingian empire found themselves practically without a supreme head. Gradually they habituated themselves to the new situation, and the fact of immunity put at last out of sight the theory of dependence ; but there are many symptoms that this change was not quite easily ac- 108 HISTORY OP LAW OP NATURE. chap. ir. complished ; and, indeed, to the impression that in the nature of things there must necessarily be a culmi- nating domination somewhere, we may, no doubt, refer the increasing tendency to attribute secular superiority to the See of Rome. The completion of the first stage in the revolution of opinion is marked, of course, by the accession of the Capetian dynasty in France. When the feudal prince of a limited territory surrounding Paris began, from the accident of his uniting an unusual number of suzerainties in his own person, to call himself ^m^r of France^ he became king in quite a new sense, a sovereign standing in the same relation to the soil of France as the baron to his estate, the tenant to his freehold. The precedent, however, was as influential as it was novel, and the form of the monarchy in France had visible effects in hastening changes which were elsewhere proceeding in the same direction. The kingship of our Anglo-Saxon regal houses was midway between the chieftainship of a tribe and a territorial supremacy ; but the superiority of the Norman monarchs, imitated from that of the King of France, was distinctly a territorial sovereignty. Every subsequent dominion which was established or consolidated was formed on the later model. Spain, Naples, and the principalities founded on the ruins of municipal freedom in Italy, were all under rulers whose sovereignty was territorial. Few things, I may add, are more curious than the gradual lapse of CHAP. rr. INTERNATIONAL LAW. 109 the Verjeiians from one view to the other. At the commencement of its foreign conquests, the republic regarded itself as an antitype of the Roman common- wealth, governing a number of subject provinces. Move a century onwards, and you find that it wishes to be looked upon as a corporate sovereign, claiming the rights of a feudal suzerain over its possessions in Italy and the jEgean. During the period through which the popular ideas on the subject of sovereignty were undergoing this remarkable change, the system which stood in the place of what we now call International Law, was heterogeneous in form and inconsistent in the prin- ciples to which it appealed. Over so much of Europe as was comprised in the Romano-German empire, the connection of the confederate states was regulated by the complex and as yet incomplete mechanism of the Imperial constitution ; and, surprising as it may seem to us, it was a favourite notion of German lawyers that the relations of commonwealths, whether inside or outside the empire, ought to be regulated not by the Jiis Gentium^ but by the pure Roman jurispru- dence, of which CsBsar was still the centre. This doctrine was less confidently repudiated in the out- lying countries than we might have supposed antece- dently ; but substantially, through the rest of Europe feudal subordinations furnished a substitute for a public law ; and when those were undetermined or ^' 110 HISTORY OF LAW OF NATURE. chap. iv. ambiguous, there lay behind, in theory at least, a supreme regulating force in the authority of the head of the Church. It is certain, however, that both feudal and ecclesiastical influences were rapidly de- cajdng during the fifteenth, and even the fourteenth century ; and if we closely examine the current pre- texts of wars, and the avowed motives of alliances, it will be seen that, step by step with the displace- ment of the old principles, the views afterwards har- monised and consolidated by Ayala and Grotius were making considerable progress, though it was silent and but slow. Whether the fusion of all the sources of authority would ultimately have evolved a system of international relations, and whether that system would have exhibited material differences from the fabric of Grotius, is not now possible to decide, for as a matter of fact the Reformation annihilated all its potential elements except one. Beginning in Ger- many, it divided the princes of the empire by a gulf too broad to be bridged over by the Imperial supremacy, even if the Imperial superior had stood neutral. He, however, was forced to take colour with the church against the reformers ; the Pope was, / as a matter of course, in the same predicament ; and thus the two authorities to whom belonged the office of mediation between combatants became themselves the chiefs of one great faction in the schism of the nations. Feudalism, already enfeebled and discredited I « 1 •^ .. •• .'N I CHAP. IV. GROTIUS. Ill as a principle of public relations, furnished no bond whatever which was stable enough to countervail the alliances of religion. In a condition, therefore, of public law which was little less than chaotic, thogp vi ews of a state .s yst em to T^hich the Rpnajin juriscon-^ suits were ^ supposed to have given their sanction \ alone remained standing. The shape, the synmietry, and the prominence which they assumed in the hands of Grotius are known to every educated man ; but the great marvel of the Treatise " De Jure Belli et Pacis," was its rapid, complete, and universal success. The horrors of the Thirty Years' War, the boundless >^ '^ terror ana pily ' whiclx the unbridled license of the soldiery was exciting, must, no doubt, be taken to explain that success in some measure, but they do not wholly account for it. Very little penetration into the ideas of that age is required to convince one that, if the ground plan of the in ternational ^/ lifir>/> which was sketched in the great book of Grotius had U not appeared to be theoretically perfect, it would have been discarded by jurists and neglected by statesmen and soldiers. It is obvious that the speculative perfection of the Grotian system is intimately connected with that conception of territorial sovereignty which we have been discussing. The theory of International Law assumes that commonwealtfis are, relatively to each other, in a state of nature ; but the component atoms 112 fflSTORY OF LAW OF NATURE. chap. iv. of a natural society must, by the fundamental as- sumption, be insulated^nd independent of each other. K there be a higher power connecting them, however slightly and occasionally, by the claim of common supremacy, the very conception of a com- mon superior introduces the notion of positive law, and excludes the i dea of a law na turaL Ti Allows, therefore, that if the universal suzerainty of an Imperial head had been admitted even in bare theory, the labours of Grotius would have been idle. Nor is this the only point of junction between modem public law and those views of sovereignty of which I have endeavoured to describe the development. I have said that there are entire departments of inter- national jurisprudence which consist of the Roman Law of Property. What then is the inference ? It is, that if there had been no such change as I have described in the estimate of sovereignty — if sove- reignty had not been associated with the proprietor- ship of a limited portion of the earth, had not, in other words, become territorial — three parts of the Grotian theory would have been incapable of appli- cation. CHAP. V. PRIMITIVE SOCIETY AND ANCIENT LAW. 113 CHAP. V. PRmmVE SOCIETY AND ANCIENT LAW. The necessity of submitting the subject of jurispru- dence to scientific treatment has never been entirely lost sight of in modern times, and the essays which the consciousness of this necessity has produced have proceeded from minds of very various calibre, but there is not much presumption, I think, in as- serting that what has hitherto stood in the place of a science has for the most part been a s et of guesses, those very guesses of the Roman lawyers which were examined in the two preceding chapters. A series of explicit statements, recognising and adopting these conjectural theories of a natural state, an^^of a system of principles congenial to it, has been con- tinned with but brief interruption from the days of their inventors to our own. They appear in the annotations of the Glossators who founded modem jurisprudence, and in the writings of the scholastic jurists who succeeded them. They are visible in the dogmas of the canonists. They are thrust into prominence by those civilians of marvellous erudi- tion, who flourished at the revival of ancient letters. I lU PBIMITIVE SOCIETY AND ANCIENT LAW. ohaf. v. Grotius and his successors invested them not less with brilliancy and plausibility than with practical importance. They may be read in the introductory chapters of our own Blackstone, who has transcribed them textually from Burlamaqui, and wherever the manuals published in the present day for the guid- ance of the student or the practitioner begin with any discussion of the first principles of law, it always resolves itself into a restatement of the Roman hypothesis. It is however from the disguises with which these conjectures sometimes clothe them- selves, quite as much as from their native form, that we gain an adequate idea of the subtlety with which they mix themselves in human thought. The Lockeian theory o f the ori jgin of L awjjjjL. Social Conm^ct ^ '^%. scarcely conceals its Roman derivation, and indeed is only the dress by which the ancient views were ren- dered more attractive to a particular generation of the modems ; but on the other hand the theory of jv»^^' Hobb es on^tke same subject was purposely devised i,t * I *^ repudiate* the reality of a law of nature as con- ceived by the Romans and their disciples. Yet these two theories, which long divided the reflecting politicians of England into hostile camps, resemble I each other strictly in their fiindamental assumption j dr,a non-his toric, un verifiabl e, condition of the race. Their authors differed as to the characteristics of the pr»*80cial state, and as to the nature of the abnormal OHAP. V. MONT£SQUI£n. 115 action by which men lifted themselves out of it into that social organisation with which alone we are acquainted, but they agreed in thinking that a great chasm separated man in his primitive condition from man in society, and this notion we caimot doubt that I they borrowed, consciously or unconsciously, from the Romans. If.ind^ the phenomena of law be re-^N garded in the way in^ which these theorists regarded them — that is, as one vast complex whole — it is nott surprising that the mind should often evade the task it has set to itself by falling back on some ingenious I conjecture which (plausibly interpreted) will seemt • to reconcile everything, or else that it should some- times abjure in despair the labour of systematization. From the theories of jurisprudence which have the same speculative basis as the Roman doctrine two of much celebrity must be excepted. The first of them is that associated with the great name of Montesquieu. Though there are some ambiguous^ expressions in the early part of the Esprit des LojSm \ which seem to show its writer's unwillingness to break quite openly with the views hitherto popular, the general drift of the book is certainly to indicate a very different conception of its subject from any which had been entertained before. It has often been noticed that, amidst the vast variety of ex- amples which, in its immense width of survey, it sweeps together from supposed systems of juris- I 2 ^ 116 PRIMITIVE SOCTETY AND ANCIENT LAW. chaf. v. prudence, th^e is an evident anxiety to thrast into especial prominence those manners and institu- tions which astonish the civilised reader by their uncouthness, strangeness, or indecency. The in- ference constantly suggested is, that laws are the creatures of climate, local situation, accident, or im- posture — the fruit of any causes except those which appear to operate with tolerable constancy. Mon- tesquieu seems, in fact, to have looked on the nature " LsEic^a s passively repfooucing the impressions, and submitting implicitly to the impulses, which it receives from without. And here no doubt lies the error which vitiates his system as a system. He greatly underrates the atAT^^ |]j| y of h uman nature. He pays little or no regard to the inherited qualities of the race, those qualities which each generation receives from its predecessors, and transmits but slightly altered to the generation which follows it. It is quite true, indeed, that no complete account can be given of social phenomena, and consequently of laws, till due allowance has been made for those modi^zing-cattses which are noticed in the Esprit des Lois; but their number and their force appear to have been overestimated by Montesquieu. Many of the anomalies which he parades have since been shown to rest on false report or erroneous construc- tion, and of those which remain not a few prove the permanence rather than the variableness of man's CHAP. V. MONTESQUIEU AND BENTHAM* UT nature, since they are relics of older stages of the race which have obstinately defied the influences that have elsewhere had eflfect. The truth is that the stebk p art of ou r mental, moral, and physica l I constitution is the larges t part of it, and the resist- ance it opposes to change is such that, though the variations of human society in a portion of the world are pjain enough, they are neither so rapid nor so extensive that their amount, character, and general direction cannot be ascertained. An approximation to truth may be all that is attainable with our present knowledge, but there is no reason for think- ing that is so remote, or (what is the same thing) that it requires so much future correction, as to be entirely useless and uninstructive. The other theory which has been adverted to is, the historical theory of Bentham. This theory which is obscurely (and, it might even be said, ti- midly) propounded in several parts of Bentham's works is quite distinct from that analysis of the con- ception of law which he commenced in the " Fragment [ on Government," and which was more recently com- pleted by Mr. John Austin. The resolution of a law into a command of a particular nature, imposed under special conditions, does not affect to do more than protect us against a difficulty — a most formi- dable one certainly — of language. The whole ques- tion remains open as to the motives of societies in I 3 118 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. imposing these commands on themselves, as to the connexion of these commands with each other, and the nature of their dependence on those which pre^ ceded them, and which they have superseded. Ben- tham suggests the answer that societies modify, and have always modified, their laws according to modi- fications of their views of general expediency. It is difficult to say that this proposition is fitlse, ^ut it certainly appears to be unfruitful. For that which seems expedient to a society, or rather to the go- verning part of it, when it alters a rule of law is surely the same thing as the object, whatever it may be, which it has in view when it makes the change. Expediency and the greatest good are nothing more than different names for the impulse which prompts the modification; and when we lay down expediency as the rule of change in law or opinion, all we get by the proposition is the substitution of an express term for a term which is necessarily implied when we say that a change takes place. There is such wide-spread dissatisfaction with existing theories of jurisprudence, and so general a conviction that they do not really solve the questions they pretend to dispose of^ as to justify the suspicion that some line of inquiry, necessary to a perfect result, has been incompletely followed or altogether omitted by their authors. And indeed there is one remarkable omission with which all these specula- ^^es CHAP. T. PROP£R MODE OF INQUIRT. 119 tions are chargeable, except perhaps those of Mon- tesquieu. They take no account of what law has actually been at epochs remote from the particular period at which they made their appearance. Their originators carefully observed the institutions of their own age and civilisation, and those of other ages and civilisations with which they had some degree of intellectual S3^mpathy, but, when they turned their attention to archaic states of society which exhibited much superficial difference from their own, they uni- formly ceased to observe and began guessing. The mistake which they committed is therefore analogous to the error of one who, in investigating the laws of the material universe, should commence by contem- plating the existing phjrsical world as a whole , Jn- stead of beginning with the particles whic h jure its atrnpioof ^^PTfidifiBtii Ouc docs uot certainlv see why such a scientific solecism should be more de- fensible in jurisprudence than in any other region of thought. It would seem antecedently that we ought to commence with the simplest social forms in a state as near as possible to their rudimentary condi^ tion. In other words, if we followed the course usual in such inquiries, we should penetrate as far up as we could in the history of primitive societies. The phenomena which early societies present us with are not easy at first to understand, but the difficulty of grappling with them bears no proportion to the I 4 120 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. perplexities which beset us in considering the baffling entanglement of modem social organisation. It is a difficulty arising from their strangeness and un- couthness, not from their number and complexity. One does not readily get over the surprise which they occasion when looked at from a modem point of view ; but when that is surmounted they are few enough and simple enough. But, even if they gave more trouble than they do, no pains would be wasted in ascertaining the germs out of which has assuredly been unfolded every form of moral restraint which controls our actions and shapes our conduct at the present moment. The rudiments of the social state, so far as they are known to us at all, are known through testimony of three sorts — account s by contemporary observers of civilisations less advanced than their own, the records ^which particular races have preserved concerning their primitive history, and ancient law. The first kind of evidence is the best we could have expected. As societies do not advance concurrently, but at dif- ferent rates of progress,* there have been epochs at which men trained to habits of methodical observa- tion have really been in a position to watch and de- scribe the infancy of mankind. Tacitus made the most of such an opportunity; but the Germany^ unlike most celebrated classical books, hasmot induced others to follow the excellent example set by its author, and cuAP. V. THE GERMANY OF TAQTUS- 121 the amount of this sort of testimony which we pos- sess is exceedingly small. The lofty contempt which/ a civilised people entertains for barbarous neighbours has caused a remarkable negligence in observing them, and this carelessness has been aggravated at i times by fear, by religious prejudice, and even by the use of these very terms — civilisation and bar- barism — which convey to most persons the impres- sion of a difference not merely in degree but in kind. Even the Germany has been suspected by some critics of sacrificing fidelity to poignancy of contrast and picturesqueness of narrative. Other histories too, which have been handed down to us among the archives of the people to whose infancy they relate, have been thought distorted by the pride of race or by the religious sentiment of a newer age. It is important then to observe that these suspicions, whe- ther groundless or rational, do not attach to a great deal of archaic law. Much of the old law which has descended to us was preserved merely because it was old. Those who practised and obeyed it did not pretend to understand it; and in some cases they even ridiculed and despised it. They offered no account of it except that it had come down to them from their ancestors. If we confine our attention, then, to those fragments of ancient institutions which cannot reasonably be supposed to have been tampered with, we are able to gain a clear conception of certain / / 122 PRIMITIVE SOCIETY AND ANCIENT LAW. chap v. great characteristics of the society to which they originally belonged. Advancing a step farther, we can apply our knowledge to systems of law which, like the Code of Menu, are as a whole of suspicious authenticity ; and, using the key we have obtained, we are in a position to discriminate those portions of them which are truly archaic from those which have been affected by the prejudices, interests, or ignorance of the compiler. It will at least be acknowledged that, if the materials for this process are sufficient, and if the comparisons be accurately executed, the methods followed are as little objectionable as those which have led to such surprising results in compara- tive philology. The effect of the evidence derived from compara- tive jurisprudence is to establish that view of the primeval condition of the human race which is known as the Patriarchal Theory. There is no doubt, of course, that this theory was originally based on the Scriptural history of the Hebrew patriarchs in Lower Asia; but, as has been explained already, its con- nexion with Scripture rather militated than other- wise against its reception as a complete theory, since the majority of the inquirers who till recently ad- dressed themselves with most earnestness to the colli- gation of social phenomena, were either influenced by the strongest prejudice against Hebrew antiquities or by the strongest desire to construct their system CHAP. V. SCRIPTURAL ACCOUNTS. without the assistance of religious records. Even now there is perhaps a disposition to undervalue these accounts, or rather to decline generalising from them^ as forming part of the traditions of a Semitic people. It is to be noted, however, that the legal testimony comes nearly exclusively from the institutions of societies belonging to the Indo-European stock, the Romans, Hindoos, and Sclavonians supplying the greater part of it; and indeed the difficulty, at the present stage of the inquiry, is to know where to stop, to say of what races of men it is not allowable to lay down that the society in which they are united was originally organised on the patriarchal model. The chief lineaments of such a society, as collected from the early chapters in Genesis, I need not attempt to depict with any minuteness, both because they are familiar to most of us from our earliest childhood, and because, from the interest once attaching to the controversy which takes it name from the debate between Locke and Filmer, they fill a whole chapter, thought not a very profitable one, in English litera- ture. The points which lie on the surface of the history are these: — The eldest male parent — the eldest ascendant — is absolutely supreme in his house- hold. His dominion extends to life and death, and is as unqualified over his children and their houses as over his slaves ; indeed the relations of sonship and serfdom appear to differ in little beyond the higher > "y J x^ 124 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. capacity which the child in blood possesses of be- 1 coining one day the head of a family himself. The flocks and herds of the children are the flocks and herds of the father, and the possessions of the parent, which he holds in a representative rather than in a proprietarjr character, are equally divided at his death among his descendants in the first degree, the eldest son sometimes receiving a double share imder the name of birthright, but more generally endowed with no hereditary advantage beyond an honorary precedence. A less obvious inference from the Scrip- tural accounts is that they seem to plant us on the traces of the breach which is first effected in the empire of the parent. The families of Jacob and Esau separate and form two nations ; but the families of Jacob's children hold together and become a people. This looks like the immature germ of a state or com- monwealth, and of an order of rights superior to the claims of family relation. K I were attempting for the more special purposes of the jurist to express compendiously the charac- teristics of the situation in which mankind disclose themselves at the dawn of their history, I should be satisfied to quote a few verses from the Odyssee of Homer : Toitnv h* ovT dyopat jiovXTf^/topoi ovre difittrrtQ, vat^ufy ]}S* d\6)(ufyf ohi* dXX^Xuiv aXiyoveiy. CHAP. V. PRIMITIVE SOCIETY. 12^ " They have neither assemblies for consultation nor themtsteSy but every one exercises jurisdiction over his wives and his chUdren, and they pay no regard to one another." These lines are applied to the Cyclops, and it may not perhaps be an altogether fanciful idea when I suggest that the Cyclops is Homer's type of an alien and less advanced civilisation; for the almost physical loathing which a primitive com- munity feels for men of widely different manners from its own usually expresses itself by describing them as monsters, such as giants, or even (which is almost always the case in Oriental mythology) as demons. However that may be, the verses condense in themselves the sum of the hints which are given us by legal antiquities. Men are first seen distributed in perfectly insulated groups, held together by obe* dience to the parent. Law is the parent's word, but it is not yet in the condition of those themistes which were ISSTysed in the first chapter TO? work. When we go forward to the state of society in which these early legal conceptions show themselves as formed, we find that they still partake of the mystery and spontaneity which must have seemed to charac- terise a despotic father's commands, but that at the{ same time, inasmuch as they proceed from a sovereign, they presuppose a union of family groups in some wider organisation. The next question is, what is the nature of this union and the degree of intimacy which M ,v' ' 126 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. it inyolyes. It is just here that archaic law renders us one of the greatest of its services and fills up a gap which otherwise could only have been bridged by con- jecture. It is full, in all its provinces, of the clearest indications that society in primitive times was not what it is assumed to be at present, a collection of individuals. In fact, and in the view of the men who composed it, it was an aggrega tion of famiUes. The contrast may be most forcibly expressed by saying that the unit of an ancient society was the Fa- mily, of a modem society the Individual. We must be prepared to find in ancient law all the conse- quences of this difference. It is so framed as to be adjusted to a system of small independent corpo- rations. It is therefore scanty, because it is sup- plemented by the despotic commands of the heads of households. It is ceremonious, because the transac- tions to which it pays regard resemble international concerns much more than the quick play of inter- course between individuals. Above all it has a pecu- liarity of wluch the full importance cannot be shown at present. It takes a view of life wholly unlike any which appears in developed jurisprudence. Corpo- rations never die^ and accordingly primitive law considers the entities with which it deals, i.e. the patriarchal or family groups, as perpetual and inex- tinguishable. This view is closely allied to the pecu- liar aspect under which, in very ancient times, moral CHAP. V. EARLY MOBAL DOCTRINES. 127 attributes present themselves. The moral elevation and moral debasement of the individual appear to be confounded with, or postponed to, the merits and offences of the group to which the individual belongs. If the community sins, its guilt is much more than the sum of the offences committed by its members ; the crime is a corporate act, and extends in its con- sequences to many more persons than have shared in its actual perpetration. If, on the other hand, the individual is conspicuously guilty, it is his children, his kinsfolk, his tribesmen, or his fellow-citizens, who suffer with him, and sometimes for him. It thus happens that the ideas of moral responsibility and retribution often seem to be more clearly realised at very ancient than at more advanced periods, for, as the family group is immortal, and its liability to punishment indefinite, the primitive mind is not per- plexed by the questions which become troublesome as soon as the individual is conceived as altogether separate from the group. One step in the transition fix>m the ancient and simple view of the matter to the theological or metaphysical explanations of later days is marked by the early Greek notion of an inherited curse. The bequest received by his posterity from the original criminal was not a liability to punish- ment, but a liability to the commission of fresh offences which drew with them a condign retribution ; and thus the responsibility of the family was reconciled 128 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. / i with the newer phase of thought which limited the consequences of crime to the person of the actual delinquent. It would be a vety simple explanation of the origin of society if we could base a general conclusion on the hint furnished lis' by the Scriptural example already adverted to, and could suppose that communities be- gan to exist wherever a family held together instead of separating at the death of its patriarchal chieftain. In most of the Greek states and in Rome there long remained the vestiges of an ascendinjg series of groups out of which the State was at first constituted. The Family, House, and Tribe of the Romans may be taken as the type of them, and they are so described to us that we can scarcely help conceiving them as a system of concentric circles which have gradually expanded from the same point. The elementary group is the Family, connected by common subjection to the highest male ascendant. The aggregation of Families forms the Gens or House. The aggregation of Houses makes the Tribe. The aggregation of Tribes constitutes the Commonwealth. Are we at liberty to follow these indications, and to lay down that the commonwealth is a collection of persons united by common descent from the progenitor of an original family ? Of this we may at least be certain, that all ancient societies regarded themselves as having pro- ceeded from one original stock, and even laboured CHAP. V. 'EARLY POLITICAL IDEAS. 129 > under an incapacity for comprehending any reason except this for their holding together in political union. The history of political ideas befidns, in fact, with the assumption that kinship in blood is thesole fciini I ■> ■■ay.iMniin. I III i'» — ""^ ' -- possi ble ground of community in political functions: nori& there any of those subversions of feeling, which we term emphatically revolutions, so startling and so complete as the change which is accomplished when some other principle — such as that, for instance, of local cont iguity — establishes itself for the first time as the basis of common political action. It may be affirmed then of early commonwealths that their citi- zens considered all the groups in which they claimed membership to be founded on common lineage. What was obviously true of the Family was believed to be true first of the House, next of the Tribe, lastly of the State. And yet we find that along with this belief, or, if we may use the word, this theory, each community preserved records or traditions which distinctly showed that the fundamental assumption was false. Whether we look to the Greek states, or to Rome, or to the Teutonic aristocracies in Ditmarsh which furnished Niebuhr with so many valuable illustrations, or to the Celtic clan associations, or to that strange social organisation of the Sclavonic Russians and Poles which has only lately attracted notice, everywhere we discover traces of passages in their history when men of alien descent were admit- K ISO PRIMITIVE SOCIETY AND ANCIENT LAW. chap. y. ted to, and amalgamated with, the ori^nal brother- hood. Adverting to Rome singly, we perceive that the prhnary group, the Family, was being constantly adulterated by the practice of adoption , while stories seem to have been always current respecting the exotic extraction of one of the original Tribes and concerning a large addition to the Houses made by one of the early kings. The composition of the state, uniformly assumed to be natural, was nevertheless known to be in great measure artificial. This con- flict between belief or theory and notorious fact is at first sight extremely perplexing ; but what it really illustrat es is th e efliciency jjnth wM ^ictioPB io their work m the infancy of soeietK The earliest Land most extensively employed of legal fictions was that which permitted family relations to be created artificially, and there is none to which I conceive mankind to be more deeply indebted. If it had never existed, I do not see how any one of the primitive I f" ^' I groups, whatever were their nature, could have ab- sorbed another, or on what terms any two of them could have combined, except those of absolute superi- ority on one side and absolute subjection on the other. No doubt, when with our modem ideas we contem- plate the union of independent communities, we can suggest a hundred modes of carrying it out, the simplest of all being that the individuals comprised in the coalescing groups shall vote or act together CHAP. Y. FICTION OF ADOPTION- 131 according to local propinquity ; but the idea that a number of persons s hould exercise politicq.1 ri ^ht p in common simply because they happened to live within t he same tnppprrapliiAftl i;nr^]|,|^^as utterly s trange a nd monstrous to primitive antiquity. The expedient which in those times commanded favour was that the incoming population should feign themselves to be descended from the same stock as the people on whom they were engrafted ; and it is precisely the good faith of this fiction, and the closeness with which it seemed to imitate reality, that we cannot now hope to understand. One circumstance, how- ever, which it is important to recollect, is that the men who formed the various political groups were certainly in the habit of meeting together periodically, for the purpose of acknowledging and consecrating their association by common sacrifices. Strangers amalgamated with the brotherhood were doubtless admitted to these sacrifices ; and when that was once done, we can believe that it seemed equally easy, or not more difficult, to conceive them as sharing in the common lineage. The conclusion then which is sug- gested by the evidence is, not that all early societies were formed by descent from the same ancestor, but that all of them which had any permanence and solidity either were so descended or assumed that they were. An indefinite number of causes may have shattered the primitive groups, but wherever their K 2 I 132 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. ingredients recombined, it was on the model or prin- ciple of an association of kindred. Whatever were the fact, all thought, language, and law adjusted them- selves to the assumption. But though all this seems to me to be established with reference to the commu- nities with whose records we are acquainted, the remainder of their history sustains the position before laid down as to the essentially transient and termi- nable influence of the most powerful Legal Fictions. At some point of time — probably as soon as they felt themselves strong enough to resist extrinsic pres- sure — all these states ceased to recruit themselves by factitious extensions of consanguinity. They ne- cessarily, th erefore, b ecame Aristocracies, in all cases where a fresh population from any cause collected around them which could put in no claim to commu- nity of origin. Their sternness in maintaining the central principle of a system under which political riglits were attainable on no terms whatever except connexion in blood, real or artificial, taught their inferiors another principle, which proved to be en- dowed with a far higher measure of vitality. This was the principle of loccU contiguity^ now recognised everywhere as the condition of community in poli- tical functions. A new set of political ideas came at once into existence, which, being those of ourselves, our contemporaries, and in great measure of our ancestors, rather obscure our perception of the older theory which they vanquished and dethroned. CHAP. V. THE ANCIENT FAMILY. 133 The Family then is the type of an archaic society in all the modifications which it was capable of assuming; but the family here spoken of is not ex- actly the family as understood by a modem. In order to reach the ancient conception we must give to our modem ideas an important extension and an important limitation. We must look on the family as constantly enlarged by the absorption of strangers / within its circle, and we must try to regard the ficti on of adop tion as so closely simulating the reality of kinship that neither law nor opinion makes the slightest diflference between a real and an adoptive connexion. On the other hand, the persons theo- retically amalgamated into a family by their common descent are practically held together by common obe- dience to their highest living ascendant, the father, grandfather, or great-grandfather. The patriarchal authority of a chieftain is as necessary an ingredient in the notion of the family group as the fact (or as- sumed fact) of its having sprung from his loins ; and hence we must understand that if there be any persons who, however truly included in the brotherhood by virtue of their blood-relationship, have nevertheless de facto withdrawn themselves from the empire of its ruler, they are always, in the beginnings of law, considered as lost to the family. It is this patriarchal aggregate — the modern family thus cut down on one side and extended on the other — which meets us on & 3 134 PRIMITIVE SCXaLETY AND ANCIENT LAW, chap. v. the threshold of primitive jurisprudence. Older pro- bably than the State, the Tribe, and the House, it left traces of itself on private law long after the House and the Tribe had been forgotten, and long after con- sanguinity had ceased to be associated with the com- position of States. It will be found to have stamped itself on all the great departments of jurisprudence, and may be detected, I think, as the true source of many of their most important and most durable cha- racteristics. At the outset, the peculiarities of law in its most ancient state lead us irresistibly to the conclusion that it took precisely the same view of the family group which is taken of individual men by the systems of rights and duties now prevalent through- out Europe. There are societies open to our observa- tion at this very moment whose laws and usages can scarcely be explained unless they are supposed never to have emerged from this primitive condition ; but in communities more fortunately circumstanced the fabric of jurisprudence fell gradually to pieces, and if we carefully observe the disintegration we shall perceive that it took place principally in those por- tions of each system which were most deeply affected by the primitive conception of the family. In one all-important instance, that of the Roman law, the change was effected so slowly, that from epoch to epoch we can observe the line and direction which it followed, and can even give some idea of the ultimate CHAP. V. THE PATRIA POTESTAS. 135 result to which it was tending. And, in pursuing this last inquiry, we need not suffer ourselves to be stopped by the imaginary barrier which separates the modem from the ancient world. For one effect of that mixture of refined Roman law with • primitive barbaric usage, which is known to us by the deceptive name of feudalism, was to revive many features of archaic jurisprudence which had died out of the Roman world, so that the decomposition which had seemed to be over commenced again, and to some extent is still proceeding. /T^^ y^» f. / On a few systems of law the family organisation of the earliest society has left a plain and broad mark in the life-long authority of the Father or other ancestor over the person and property of his descendants, an authority which we may conveniently call by its later Roman name of Patria Potestas. No feature of the rudimentary associations of mankind is deposed to by a greater amount of evidence than this, and yet none seems to have disappeared so generally and so rapidly from the usages of advancing communities. Grains,! writing under the Antonines, describes the insti- tution as distinctively Roman. It is true that, had he glanced across the Rhine or the Danube to those tribes of barbarians which were exciting the curiosity of some among his contemporaries, he would have seen * examples of patriarchal power in its crudest form ; and in the far East a branch of the same ethnical k4 136 PRIMITIVE SOCIETY AND ANCIENT LAW. cuap. v. stock from which the Romans sprang was repeating their Patria Potestas in some of its most technical incidents. But among the races understood to be comprised within the Roman empire, Gains could find none which exhibited an institution resembling the Roman " Power of the Father," except only the Asiatic Galatae. There are reasons, indeed, as it seems to me, why the direct authority of the ancestor should, in the greater number of progressive societies, very shortly assume humbler proport ions than belonged to 1 it in their earliest state. The implicit obedience of rude men to their parent is doubtless a primary fact, which it would be absurd to explain away altogether by attributing to them any calculation of its advantages ; but, at the same time, if it is natural in the sons to obey the father, it is equally natural that they should look to him for superior strength or superior wisdom. Hence, when societies are placed under circumstances which cause an especial value to be attached to \ bodily and mental vigour, there is an influence at work which tends to confine the Patria Potestas to the cases where its possessor is actually skilful and Jstrong. When we obtain our first glimpse of orga- nised Hellenic society, it seems as if supereminent wisdom would keep alive the father's power in per- sons whose bodily strength had decayed; but the relations of Ulysses and Laertes in the Odyssee appear to show that, where extraordinary valour and sagacity CHAP. V. TIIE PATRIA POTESTAS. 137 were united in the son, the father in the decrepitude of age was deposed from the headship of the family. In the mature Greek jurisprudence, the rule advances a few steps on the practice hinted at in the Homeric literature ; and though very many traces of stringent family obligation remain, the direct authority of the parent is limited, as in European codes, to the non- age or minority of the children, or, in other words, to the period during which their mental and physical inferiority may always be presumed. The Roman law, however, with its remarkable tendency to inno- vate on ancient usage only just so far as the exigency of the commonwealth may require, preserves both the primeval institution and the natural limitation to which I conceive it to have been subject. In every relation of life in which the collective community might have occasion to avail itself of his wisdom and strength, for all purposes of counsel or of war, the filius familias, or Son under Power, was as free as his father. It was a maxim of Roman jurisprudence !![ f[ that the Patria Potestas did not extend to the Jus U I^lblifiJlJ^• FathernEind son voted together in the city, and fought side by side in the field ; indeed, the son, as general, might happen to command the father, or, as magistrate, decide on his contracts and punish his delinquencies. But in all the relations created by Private Law, the son lived under a domestic despotism which, considering the severity it retained to the last, ^ 138 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. and the number of centuries through which it en- dured, constitutes one of the strangest problems in legal history. The Patria Potestas of the Romans, which is neces- sarily our type of the primeval paternal authority, is equally difficult to understand as an institution of civilised life, whether we consider its incidence on the person or its effects on property. It is to be regretted that a chasm which exists in its history cannot be more completely filled. So far as regards the person, the parent, when our information commences, has over his children the jusjsiifB.MOiwU'i *^® power of life and death, and a fortiori of uncontrolled corporal j chastisement ; he can modify their personal condition I at pleasure ; he can give a wife to his son ; he can give ■< his daughter in^marriage ; he can divorce his children \ of either sex ; he can transfer them to another family by adoption ; and he can sell them. Late in the Im- perial period we find vestiges of all these powers, but they are reduced within very narrow Umits. The unqualified right of domestic chastisement has become a right of bringing domestic offences under thrSog. nisance of the civil magistrate ; tKe privilege of dic- tating marriage ^as declined into a conditional veto; the liberty of selling has been virtually abolished, and adoption itself, destined to lose almost all its ancient importance in the reformed system of Justi- nian, can no longer be effected without the assent of I me^^^^^^i^^^'^ CHAP. V. THE PATRIA POTEST AS. 139 * the child transferred to the adoptive parentage. In short, we are brought very close to the verge of the ideas which have at length prevailed in the modem world. But between these widely distant epochs there is an interval of obscurity, and we can only guess at the causes which permitted the Patria Potestas to last as long as it did by rendering it more tolerable than it appears. The active discharge of the most important among the duties which the son owed to the state must have tempered the authority of his parent if they did not annul it. We can readily persuade ourselves that the paternal despotism could not be brought into play without great scandal against a man of full age occupying a high civil office. During the earlier history, however, such cases of practical emancipation would be rare compared with those which must have been created by the constant wars of the Roman republic. The military tribune and the private soldier who were in the field three quar- ters of a year during the earlier contests, at a later period the proconsul in charge of a province, and the legionaries who occupied it, cannot have had practical reason to regard themselves as the slaves of a despotic master ; and all these avenues of escape tended con- stantly to multiply themselves. Victories led to conquests, conquests to occupations; the mode of occupation by colonies was exchanged for the system of occupying provinces by standing armies. Each 140 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. \ \ step in advance was a call for the expatriation of more Roman citizens and a fresh draft on the blood of the failing Latin race. We may infer, I think, that a strong sentiment in favour of the relaxation of the Patria Potestas had become fixed by the time that the pacification of the world commenced on the establishment of the Empire, The first serious blows at the ancient institution are attributed to the earlier Caesars, and some isolated interferences of Trajan and Hadrian seem to have prepared the ground for a series of express enactments which, though we cannot always determine their dates, we know to have limited the father's powers on the one hand, and on the other to have multiplied facilities for their voluntary surrender. The older mode of. getting rid of the Potestas, by effecting a triple sale of the son's person ^s^evidence, I may remark, of a . very early feeling against the unnecessary prolongation of the powers. The rule which declared that the son should be free after having been three times sold by his father seems to have been originally meant to entail penal consequences on a practice which revolted even the imperfect morality of the primitive Roman. But even before the publication of the Twelve Tables it had been turned, by the ingenuity of the jurisconsults, into an expedient for destroying the parental authority wherever the father desired that it should cease. CHAP. V. THE PATRIA POTESTAS. 141 Many of the causes which helped to mitigate the stringency of the father's power over the persons of his children are doubtless among those which do not lie upon the face of history. We cannot tell how far public opinion may have paralysed an authority which the law conferred, or how far natural alBfection may have rendered it endurable. But though the powers over the person may have been latterly nominal, the whole tenour of the extant Roman juris- prudence suggests that the father's rights over the son's pro perty were alw ays exercised without_sciuple to the full extent to which they were sanctioned by law. There is nothing to astonish us in the latitude of these rights when they first show themselves. The ancient law of Rome forbade the Children under \ Power to hold property apart from their parent, or (we should rather say) never contemplated the pos- sibility of their claiming a separate ownership. The father was entitled to take the whole of the son's acquisitions, and to enjoy the benefit of his contracts without being entangled in any compensating lia- bility. So much as this we should expect from the constitution of the earliest Roman society, for we can hardly form a notion of the primitive family group unless we suppose that its members brought their earnings of all kinds into the common stock while they were unable to bind it by improvident individual engagements. The true enigma of the ^' 142 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. Patiia Potestas does not reside here, but ia the slow- ness with which these proprietary privileges of the parent were curtailed, and in the circumstance that, before they were seriously diminished, the whole civilised world was brought within their sphere. No innovation of any kind was attempted till the first years of the Empire, when the acquisitions of soldiers on service were withdrawn from the operation of the Patria Potestas, doubtless as part of the reward of the armies which had overthrown the free common- wealth. Three centuries afterwards the same immu- nity .was extended to the earnings of persons who were in the civil employment of the state. Both changes were obviously limited in their applicatioii, and they were so contrived in technical form as to interfere as little as possible with the principle of Patria Potestas. A certain qualified and dependent ownership had always been recognised by the Roman t^ ^ law in the perquisites and savings which slaves and /''Isons under power were not compelled to include in I J the household accounts, and the special name of this / permissive property, Peculium, was applied to the I acquisitions newly relieved from Patria Potestas, which I were called in the case of soldiers Castrense Peculium, and Quasi-castrense Peculium in the case of civil ser- vants. Other modifications of the parental privileges followed, which showed a less studious outward respect for the ancient principle. Shortly after the mm? CHAP. V. THE PATRIA POTESTAS. 143 introduction of the Quasi- castrense Peculium, Con- stantine the Great took away the father's absolute control over^propefty which his children had inherited from their mother, and reduced it to a usufruct^ or [1 life-interest. A few more changes of slight import- ance followed in the Western Empire, but the furthest point reached was in the East, under Justinian, who enacted that unless the acquisitions of the child were derived from the parent's own property, the parent's rights over them should not extend beyond enjoy- ing their produce for the period of his life. Even, \ this, the utmost relaxation _o f^ the Roman Patr i a I ^ot^stM , left it far , ampkr. .and severer JthaiUMiy— I fftralCgous institution of the modern woiid#.-» The I earliest modern writers on jurisprudence remark that it was only the fiercer and ruder of the conquerors of the empire, and notably the nations of Sclavonic MMi%n^M origin, which exhibited a Patria Potestas at all re- sembling that which was described in the Pandects and the Code. All the Germanic immigrants seem to have recognised a corporate union of the family under the mund^ or authority of a patriarchal chief ; but his powers are obviously only the relics of a de- cayed Patria Potestas, and fell far short of those enjoyed by the Roman father. The Franks are particularly mentioned as not having the Roman Institution, and accordingly the old French law- yers, even when most busily engaged in filling the 144 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. interstices of barbarous custom with rules of Roman law, were obliged to protect themselves against the intrusion of the Potestas by the express maxim, ts Puy ssance de phre en F rance rHa lieu. The tenacity oT the Romans in maintainmgTTiisrelic of their most ancient condition is in itself remarkable, but it is less remarkable than the diffusion of the Potestas over the whole of a civilisation from which it had once disappeared. While the Castrense Peculium consti- tuted as yet the sole exception to the father's power over property, and while his power over his children's persons was still extensive, the Roman citizenship, and with it the Patria Potestas, were spreading into every comer of the empire. Every African or Spaniard, every Gaul, Briton, or Jew, who received this honour by gift, purchase, or inheritance, placed himself under the Roman Law of Persons, and, though [ our authorities intimate that children bom before the I acquisition of citizenship could not be brought under I Power against their will, children born after it and ; all ulterior descendants were on the ordinary footing of a Roman jilius familias. It does not fall within the province of this treatise to examine the mechanism of the later Roman society, but I may be permitted to remark that there is little foundation for the opinion which represents the constitution of Antoninus Cara- calla conferring Roman citizenship on the whole of his subjects as a measure of small importance. How- CHAP. V. THE PATRIA POTESTAS. 145 ever we may interpret it, it must have enormously enlarged the sphere of the .Patria Potestas, and it seems to me that the tightening of family relations which it eflfected is an agency which ought to be kept in view more than it has been, in accounting for the great moral revolution which was transforming the world. Before this branch of our subject is dismissed, it should be observed that the Paterfamilias was answerable for the delicts (or torts) of his Sons under Power. He was similarly liable for the torts of his slaves; but in both cases he originally possessed the singular privilege of tendering the delinquent's person in full satisfaction of the damage. The responsibility thus incurred on behalf of sons, coupled with the mutual incapacity of Parent and Child under Power to sue one another, has seemed to some jurists to be best explained by the assumption of a " unity of person" between the Pater-familias and the Filius- familias. In the Chapter on Successions I shall at- tempt to show in what sense, and to what extent, this " unity " can be accepted as a reality. I can only say at present that these responsibilities of the Paterfami* lias, and other legal phenomena which will be discussed hereafter, appear to me to point at certain duti^ of the primitive Patriarchal chieftain which balanced his rights. I conceive that, if he disposed absolutely of the persons and fortune of his clansmen, this repre- L 146 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. sentative ownership was coextensive with a liability to provide for all members of the brotherhood out of the common fund. The difficulty is to throw our- selves out of our habitual associations sufficiently for conceiving the nature of his obligation. It was not a legal duty, for law had not yet penetrated into the precinct of the Family. To call it moral is perhaps to anticipate the ideas belonging to a later stage of mental development; but the expression " moral obligation " is significant enough for our purpose, if we imderstand by it a duty semi-consciously followed and enforced rather by instinct and habit than by definite sanctions. The Patria Potestas, in its normal shape, has not been, and, as it seems to me, could not have been, a generally durable institution. The proof of its former universality is therefore incomplete so long as we consider it by itself; but the demonstration may be carried much further by examining other departments of ancient law which depend on it ultimately, but not by a thread of connexion visible in all its parts or to all eyes. Let us turn for example to Kinship, or in other words, to the scale on which the proximity of relatives to each other is calculated in archaic juris- prudence. Here again it will be convenient to em- ploy the Roman terms. Agnatic and Cognatic relation- ship. Cognatic relationship is simply the conception of kinship familiar to modem ideas ; it is the relation- CHAP. V. AGNATION AND COGNATION. 147 ship arising through common descent from the same pair of married persons, whether the descent be traced through males or females. Agnatic relation- ship is something very different : it excludes a num- ber of persons whom we in our day should certainly consider of kin to ourselves, and it includes many more whom we should never reckon among our kindred. It is in truth the connexion existing be-\ tween the members of the Family, conceived as itl was in the most ancient times. The limits of this connexion are far from conterminous with those of modem relationship. Cognates then are all those persons who can trace their blood to a single ancestor and ancestress ; or, if we take the strict technical meaning of the word in Roman law, they are all who trace their blood to the legitimate marriage of a common pair. " Cognation " is therefore a relative term, and the degree of con- nexion in blood which it indicates depends on the particular marriage which is selected as the com- mencement of the calculation. If we begin with the marriage of father and mother, Cognation will only express the relationship of brothers and sisters ; if we take that of the grandfather and grandmother, then uncles, aunts, and their descendants wiU also be in- cluded in the notion of Cognation, and following the same process a larger number of Cognates may be continually obtained by choosing the starting point L 2 148 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. higher and higher up in the line of ascent. All this is easily understood by a modern ; but who are the Agnates? In the first place, they are all the Cognates who trace their connexion exclusively through males. A table of Cognates is, of course, formed by taking each lineal ancestor in turn and including all his descendants of both sexes in the tabular view; if then, in tracing the various branches of such a ge- nealogical table or tree, we stop whenever we come to the name of a female and pursue that particular branch or ramification no further, all who remain after the descendants of women have been excluded are Agnates, and their connexion together is Agnatic Relationship. I dwell a little on the process which is practically followed in separating them from the Cog- nates, because it explains a memorable legal maxim, " Mulier est finis familiae" — a woman is the terminus ofthe family. A female name closes the branch or twig of the genealogy in which it occurs. None of the descendants of a female are included in the pri- mitive notion of family relationship. If the system of archaic law at which we are look- ing be one which admits Adoption, we must add to the Agnates thus obtained all persons, male or female, •ifrho have been brought into the Family by the artifi- cial extension of its boundaries. But the descendants of such persons will only be Agnates, if they satisfy the conditions which have just been described. J CHAP. V. AGNA.TIOJJ'. 149 What then is the reason of this arbitrary inclusion and exclusion ? Why should a conception of Kinship, so elastic as to include strangers brought into the family by adoption, be nevertheless so narrow as to shut out the descendants of a female member? To solve these questions, we must recur to the Patria Potestas. Th^Jbundation of Agnation is not the TTigj^^fl^p of Fath er and Motner/But the authority of t he Fa ther^^AU persons are Agnatically connected to- gether who are under the same Paternal Power, or who have been under it, or who might have been under it if their lineal ancestor had lived long enough to exercise his empire. In truth, in the primitive view, Relationship is exactly limited by Patria Potes- tas. Where the Potestas begins. Kinship begins; and therefore adoptive relatives are among the kindred. Where the Potestas ends, Kinship ends ; so that a son emancipated by his father loses all rights of Agnation. And here we have the reason why the descendants of females are outside the limits of archaic kinship. If a woman died unmarried, she could have no legitimate descendants. If she married, her children fell under the Patria Potestas, not of her Father, but of her Husband, and thus were lost to her own family. It is obvious that the organisation of primitive societies would have been confounded, if men had called themselves relatives of their mother's relatives. The inference would have been that a per- h 3 r \ » 150 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. son might be subject to two distinct PatriaB Potestates ; But distrndTPatnaB Potestates implied distinct juris- dictions, 8p that anybody amenable to two of them at ^ the same time would have lived under two different . dispensations. As long as the Family was an impe- rium in imperio, a community within the common- wealth, governed by its own institutions of which the parent was the source, the limitation of relationship to the Agnates was a necessary security against a conflict of laws in the domestic forum. The Parental Powers proper are extinguished by the death of the Parent, but Agnation is as it were a mould which retains their imprint after they have ceased to exist. Hence comes the interest of Agna- tion for the inquirer into the history of jurisprudence. The Powers themselves are discernible in compara- tively few monuments of ancient law, but Agnatic Relationship, which implies their former existence, is discoverable almost everyivhere. There are few indigenous bodies of law belonging to communities of the Indo-European stock, which do not exhibit pecu- liarities in the most ancient part of their structure which are clearly referable to Agnation. In Hin- doo law, for example, which is saturated with the *; primitive notions of family dependency, kinship is * ] entirely Agnatic, and I am informed that in Hindoo genealogies the names of women are generally omit- ted altogether. The same view of relationship per- CHAP. V. THE HALF-BLOOD. 151 vades so much of the laws of the races who overran the Roman Empire as appears to have really formed part of their primitive usage, and we may suspect that it would have perpetuated itself even more than it has in modem European jurisprudence, if it had not been for the vast influence of the later Roman law on modem thought. The Praetors early laid hold on Cognation as the natural form of kinship, and spared no pains in purifying their system from the older conception. Their ideas have descended to us, but still traces of Agnation are to be seen in many of the modem rules of succession after death. The ex- clusion of females and their children from governmental functions, commonly attributed to the usage of the S ftl|ftT^ FrftT iTcfl. has certainly an agnatic origin, being descended from the ancient German rule of succes- sion to allodial property. In Agnation too is to be sought the explanation of that extraordinary rule of English Law, only recently repealed, which prohi- bited brothers of the half-blood from succeeding to one another's lands. In the Customs of Normandy, the rule applies to uterine brothers only, that is, to brothers by the same mother but not by the same father; and, limited in this way, it is a strict de- duction from the system of Agnation, under which uterine brothers are no relations at all to one another. When it was transplanted to England, the English judges, who had no clue to its principle, interpreted h 4 152 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. y. r»; \j/ ',> 4 * 4 it as a general prohibition against the succession of the half-blood, and extended it to consanguineous brothers, that is to sons of the same father by differ- ent wives. In all the literature which enshrines the pretended philosophy of law, there is nothing more i curious than the pages of elaborate sophistry in which Blackstone attempts to explain and justify the 'i\ exclusion of the half-blood. It may be shown, I think, that the Family, as held together by the Patria Potestas, . is the nidus out of which the entire Law of Persons has germinated. Of all the chapters of that Law the most important is that which is concerned with the status of Females. It has just been stated that Primitive Jurisprudence, though it does not allow a Woman to communicate any rights of Agnation to her descendants, includes herself nevertheless in the Agnatic bond. Indeed, the relation of a female to the family in which she was bom is much stricter, closer, and more durable than that which unites her male kinsmen. We have several times laid down that early lawtj ikP" ^^tif.^ of I Fa milies o nly ; this is the same thing as saying that it only takes notice of persons exercising Patria Potestas, and accordingly the only principle on which it enfranchises a son or grandson at the death of his Parent, is a consideration of the capacity inherent in such son or grandson to become himself the head of a new family and the root of a new set of Parental CHAP. V. GUARDIANSHIP OF WOMEN. 153 Powers, But a woman, of course, has no capacity of the kind, and no title accordingly to the liberation which it confers. There is therefore a peculiar contrivance of archaic jurisprudence for retaining her in the bondage of the Family for life. This is the institution known to the oldest Roman law as the Perpe tual Tut elage of Women, under which a Fem ale, though relieved from ker Parent's authority by his decease, continues subject through life to her nearest ma le relations as her Guardian s. Perpetual Guardian- sEip is obviously neither more nor less than an artificial prolongation of the Patria Potestas, when for other purposes it has been dissolved. In India, the system survives in absolute completeness, and its operation is so strict that a Hind oo Mo ther frequently becomes the ward of her own sons. Even in Europe, thelaws of the Scan^Jii iavigm nat ions respecting wo- men preserved it imtil quite recently. The invaders of the Western Empire had it universally among their indigenous usages, and indeed their ideas on the subject of Guardianship, in all its forms, were among the most retrogressive of those which they introduced into the Western world. But from the mature Roman jurisprudence it had entirely disap- peared. We should know almost nothing about it, if we had only the compilations of Justinian to consult ; but the discovery of the manuscript of Gains discloses it to us at a most interesting epoch, just when it had 154 PRIMITIVE SOCIETY AND ANCIENT LAW. cfHAP. v. fallen into complete discredit and was verging on extinction. The great jurisconsult himself scouts the popular apology offered for it in the mental inferiority of the female sex, and a considerable part of his volume is taken up with descriptions of the numerous expedients, some of them displajdng extraordinary ingenuity, which the Roman lawyers had devised for enabling Women to defeat the ancient rules. Led by their theory of Natural Law, the jurisconsults had evidently at this time assumed the equality of the sexes as a principle of their code of equity. The restrictions which they attacked were^ it is to be observed, restrictions on the disposition of property, for which the assent of the woman's guardians were still formally required. Control of her person was apparently quite obsolete. Ancient law subordinates the woman to her blood- relations, while a prime phenomenon of modem jurisprudence has been her subordination to her husband. The history of the change is remarkable. It begins far back in the annals of Rome. Anciently, there were three modes in which marriage might be contracted according to Roman usage, one involving a religious solemnity, the other two the observance of certain secular formalities. By the religious marriage or Confarreation ; by the higher form of civil marriage, which was called Coemption; and by the lower form, which was termed Usils^ the Husband acquired a CHAP. T. ANCIENT ROMAN MARRIAGE. 155 number of rights over the person and property of his wife, which were on the whole in excess of such as are conferred on him in any system of modem jurispru- dence. But in what capacity did he acquire them? Not as Husband^ but as Father. By the Confarreation, Coemption, and Usus, the woman passed in manu mK virij that is, in law she became the D aught er of \ her husband. She was included in hisratria Potestas. She incurred all the liabilities springing out of it while it subsisted, and surviving it when it had expired. All her property became absolutely his, and she was retained in tutelage after his death to the guardian whom he had appointed by will. These three ancient forms of marriage fell, however, gradually into disuse, so that, at the most splendid period of Roman greatness, they had almost entirely given place to a fashion of wedlock — old apparently, but not hitherto considered reputable — which was founded on a modification of the lower form of civil marriage. Without explaining the technical mecha- nism of the institution now generally popular, I may describe it as amounting in law to little more than a temporary deposit of the woman by her fa mily. The rights of the family remained unimpaired, and the laHy continued in the tutelage of guardians whom her parents had appointed and whose privileges of con- trol overrode, in many material respects, the inferior authority of her husband. The consequence was 156 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. that the situation of the Roman female, whether mar- ried or unmarried, became one of great personal and proprietary independence, for the tendency of the later law, as I have already hinted, was to reduce the power of the guardian to a nullity, while the form of marriage in fashion conferred on the husband no compensating superiority. But Christianity tended someAvhat from the very first to narrow this remark- able liberty. Led at first by justifiable disrelish for the loose practices of the decaying heathen world, but afterwards hurried on by a passion of asceticism, the professors of the new faith looked with disfavour on a marital tie which was in fact the laxest the West* ern world has seen. The latest Roman law, so far as it is touched by the Constitutions of the Christian Em- perors, bears some marks of a reaction against the liberal doctrines of the great Antonine jurisconsults. And the prevalent state of religious sentiment may explain why it is that modem jurisprudence, forged in the furnace of barbarian conquest, and formed by the fusion of Roman jurisprudence with patriarchal usage, has absorbed, among its rudiments, much more than usual of those rules concerning the position of women which belong peculiarly to an imperfect civilisation. During the troubled era which begins modem history, and while the laws of the Germanic and Sclavonic immigrants remained superposed like a separate layer above the Roman jurisprudence of their provincial €HAP. V. CONDITION OF WOMEN. 157 subjects, the women of the dominant races are seen 'everjnvhere under various forms of archaic guardian- ship, and the husband who takes a wife from any family except his own pays a money-price to her relations for the tutelage which they surrender to him. When we move onwards, and the code of the middle ages has been formed by the amalgamation of the two systems, the law relating to women carries the stamp of its double origin. The principle of the Roman jurisprudence is so far triumphant that unmarried females are generally (though there are local exceptions to the rule) relieved from the bondage of the family ; but the archaic principle of the barba- rians has fixed the position of married women, and the husband has drawn to himself in his marital character the powers which had once belonged to his wife's male kindred, the only difference being that he no longer purchases his privileges. At this point there- fore the modern law of Western and Southern Europe begins to be distinguished by one of its chief cha- racteristics, the comparative freedom it allows to unmarried women and widows, the heavy disabilities it imposes on wives. It was very long before the subordination entailed on the other sex by marriage was sensibly diminished. The principal and most powerful solvent of the revived barbarism of Europe was always the codified jurisprudence of Justi- nian, wherever it was studied with that passionate 158 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. <^ \ c enthusiasm which it seldom failed to awaken. It \ covertly but most efficaciously undermined the cus- , Uoms which it preten ded merely to interpret. But the Chapter of law relating tcrmarried* Vomen was for the most part read by the light, not of Roman, but of Canon Law, which in no one particular departs • so widely from the spirit of the secular jurisprudence as in the view it takes of the relations created by marriage. This was in part inevitable, since no society which preserves any tincture of Christian institution is likely to restore to married women the personal liberty conferred on them by the middle Roman law, but the proprietary disabilities of married females stand on quite a different basis from their personal incapacities, and it is by keeping alive and consolidating the former that the expositors of the Canon Law have deeply injured civilisation. There are many vestiges of a struggle between the secular and ecclesiastical principles, but the Canon Law nearly everywhere prevailed. In some of the French provinces, married women, of a rank below nobility, obtained all the powers of dealing with property which Roman jurisprudence had allowed, and this local law has been largely followed by the Code Napoleon ; but the state of the Scottish law shows that scrupulous deference to the doctrines of the Roman jurisconsults did not always extend to miti- CHAP. V. CONDITION OF WOMEN. 159 gating the disabilities of wives. The systems how- ever which are least indulgent to married women are invariably those which have followed the Canon Law exclusively, or those which, from the lateness of their contact with European civilisation, have never had their archaisms weeded out. The Scandinavian laws, harsh till lately to all females, are still remarkable for their severity to wives. And scarcely less stringent in the proprietary incapacities it imposes is the English Common Law, which borrows far the greatest number of its fundamental principles from the jurisprudence of the Canonists. Indeed, the part of the Common Law which prescribes the legal situation of married women may serve to give an Englishman clear notions of the great institution which has been the principal subject of this chapter. I do not know how the operation and nature of the ancient Patria Potestas can be brought so vividly before the mind as by reflecting on the prerogatives attached to the husband by the pure English Common Law, and by recalling the rigorous consistency with which the view of a complete legal subjection on the part of the wife is carried by it, where it is untouched by equity or statutes, through every department of rights, duties, and remedies. The distance between the eldest and latest Roman law on the subject of Children under Power may be considered as equivalent to the differ- 160 PRIMITIVE SOCIETY AND ANCIENT LAW. chap, v f. ence between the Common Law and the jurisprudence of the Court of Chancery in the rules which they respectively apply to wives. If we were to lose sight of the true origin of Guardianship in both its forms and were to employ the common language on these topics, we should find ourselves remarking that, while theTutelage of Women is an instance in which systems of archaic law push to \ an extravagant length the fiction of suspended rights, the rules which they lay down. for the Guardianship of Male Orphans are an example of a fault in precisely the opposite direction. All such systems terminate the Tutelage of ma les «^ ^t] pyfnQrrli^P^y early .perwd. Under the ancient Roman law, which may be taken as their type, the son who was delivered fromPatriaPotes- tas by the death of his Father or Grandfather remained under guardianship tiU an epoch which for general pur- poses may be described as arriving with his fifteenth year ; but the arrival of that epoch placed him at once in the full enjojnnent of personal and proprietary inde- pendence. The period of minority appears therefore to have been as unreasonably short as the duration of the disabilities of women was preposterously long. But, in point of fact, there was no element either of excess or of shortcoming in the circumstances which gave their original form to the two kinds of guardian- ship. Neither the one nor the other of them was based on the slightest consideration of public or i CHAP. V- GUARDIANSHIP OF ORPHANS. 161 private convenience. The guardianship of male orphans was no more designed originally to shield them till the arrival of years of discretion than the tutelage of women was intended to protect the other sex against its own feebleness. The reason why the death of the father delivered the son from the bond- age of the family was the son's capacity for becoming himself the head of a new family and the founder of a new Patria Potestas ; no such capacity was possessed by the woman and therefore she was never enfranchised. Accordingly the Guardianship of Male Orphans was a contrivance for keeping alive the semblance of subor- dination to the family of the Parent, up to the time when the child was supposed capable of becoming a parent himself. It was a prolongation of the Patria Potestas up to the period of bare physical manhood. It ended with puberty, for the rigour of the theory demanded that it should do so. Inasmuch, however, as it did not profess to conduct the orphan ward to the age of intellectual maturity or fitness for aflfairs, it was quite unequal to the purposes of general con- venience; and this the Romans seem to have dis- covered at a very early stage of their social progress. One of the very oldest monuments of Roman legisla- tion is the Lea: Lcetoria or Ploetoria which placed all free males who were of full years and rights under the temporary control of a new class of guardians, called Curatores^ whose sanction was required to M irtu) 162 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. v. validate their acts or contracts. The twenty-sixth year of the young man's age was the limit of this statutory supervision; and it is exclusively with reference to the age of twenty-five that the terms " majority " and" minority " are employed in Roman law- Pupilage or wardship in modem jurisprudence had adjusted itself with tolerable regularity to the simple principle of protection to the immaturity of youth both bodily and mental. It has its natural termination with years of discretion. But for pro- tection against physical weakness and for protection against intellectual incapacity, the Romans looked to two different institutions, distinct both in theory and design. The ideas attendant on both are combined in the modem idea of guardianship. The Law of Persons contains but one other chapter which can be usefully cited for our present purpose. The legal rules by which systems of mature juris- prudence regulate the connection of Master and Slave^ present no very distinct traces of the original condi- tion common to ancient societies. But there are reasons for this exception. There seems to be some- thing in the institution of Slavery which has at all times either •shocked or perplexed mankind, however little habituated to reflection, and however slightly advanced in the cultivation of its moral instincts. The compunction which ancient commu- nities almost unconsciously experienced appears to have always resulted in the adoption of some imagi- CHAP. T, MASTER AND SLAVE. 163 nary principle upon which a defence, or at least a rationale, of slavery could be plausibly founded. Very early in their history the Greeks explained the institution as grounded on the intellectual inferiority of certain races and their consequent natural aptitude for the servile condition. The Romans, in a spirit equally characteristic, derived it from a supposed agreement between the victor and the vanquished in which the first stipulated for the perpetual services of his foe; and the other gained in consideration the life which he had legitimately forfeited. Such theories were not obly unsound but plainly unequal to the case for which they affected to account. Still they exercised powerful influence in many ways. They satisfied the conscience of the Master. They perpetuated and probably increased the debasement the Slave. And they naturally tended to put out of sight the relation in which servitude had originally stood to the rest of the domestic system. The relation, though not clearly exhibited, is casually indicated in many parts of primitive law, and more particularly in the typical system — that of ancient Rome. Much industry and some learning have been be- stowed in the United States of America on the ques- tion whether the Slave was in the early stages of society a recognised member of the Family. There is a sense in which an affirmative answer must certainly M 2 164 PRIMITTVE SOCIETY AND ANCIENT LAW. chap.v, be given. It is clear, from the testimony both of ancient law and of many primeval histories, that the Slave might under certain conditions be made the Heir, or Universal Successor, of the Master, and this significant faculty, as I shall explain in the Chapter on Succession, implies that the government and re- presentation of the Family might, in a particular state of circumstances, devolve on the bondman. It seems, however, to be assumed in the American arguments on the subject that, if we allow Slavery to have been a primitive Family institution, the acknowledgment is pregnant with an admission of the moral defensi- bility of Negro-servitude at the present moment. What then is meant by saying that the Slave was originally included in the Family ? Not that his situa- tion may not have been the fruit of the coarsest motives which can actuate man. The simple wish to use the bodily powers of another person as a means of ministering to one's own ease or pleasure is doubtless the foundation of Slavery, and as old as human nature. When we speak of the Slave as anciently included in the Family, we intend to assert nothing as to the motives of those who brought him into it or kept him there; we merely imply that the tie which bound him to his master was regarded as one of the same general character with that which united every other member of the group to its chieftain. This conse- quence is, in fact, carried in the general assertion CHAP. V. SLAVERY. 1(J5 already made that the primitive ideas of mankind were unequal to comprehending any basis of the con- nection inter ae of individuals, apart from the rela- tions of family. The Family consisted primarily of those who belonged to it by consanguinity and next of those who had been engrafted on it by adoption ; but there was still a third class of persons who were only joined to it by common subjection to its head, and these were the Slaves. The bom and the adopted subjects of the chief were raised above the Slave by the certainty that in the ordinary course of events they would be relieved from bondage and entitled to exercise powers of their own ; but that the inferiority of the Slave was not such as to place him outside the pale of the Family, or such as to degrade him to the footing of inanimate property, is clearly proved, I think, by the many traces which remain of his ancient capacity for inheritance in the last resort. It would, of course, be unsafe in the highest degree to hazard conjectures how far the lot of the Slave was mitigated, in the beginnings of society, by having a definite place reserved to him in the empire of the Father. K is, perhaps, more probable that the son was practi- cally assimilated to the Slave, than that the Slave shared any of the tenderness which in later times was shown to the son. But it may be asserted with some confidence of advanced and matured codes that, wherever servitude is sanctioned, the slave has uni- M 3 166 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. t. formly greater advantages under systems which pre- serve some memento of his earlier condition than under those which have adopted some other theory of his civil degradation. The point of view from which jurisprudence regards the Slave is always of great importance to him. The Roman law was arrested in its growing tendency to look upon him more and more as an article of property by the theory of the Law of Nature ; and hence it is that, wherever servi- tude is sanctioned by institutions which have been deeply affected by Roman jurisprudence, the servile condition i% never intolerably wretched. There is a great deal of evidence that in those American States which have taken the highly Romanised code of Louisiana as the basis of their jurisprudence, the lot and prospects of the negro-population are better in many material respects than under institutions founded on the English Common Law, which, as recently interpreted, has no true place for the Slave, and can only therefore regard him as a chattel. We have now examined all parts of the ancient Law of Persons which fall within the scope of this treatise, and the result of the inquiry is, I trust, to give additional definiteness and precision to our view of the infancy of jurisprudence. The Civil laws of States first make their appearance as the Themistes of a patriarchal sovereign, and we can now see that these Themistes are probably only a developed form CHAP. v. ANCIENT LAW. 107 K)f the irresponsible commands which, in a still earlier condition of the race, the head of each isolated house- hold may have addressed to his wives, his children, and his slaves. But, even after the State has been organised, the laws have stUl an extremely limited application. Whether they retain their primitive character as Themistes, or whether they advance to the condition of Customs or Codified Texts, they are . bindmg not on individuals, but on Families. Ancien t . jurisprudence, if a perhaps de ceptive comparison may \ be employed, may be likened to International Law, j filling nothing, as it were, excepting the interstices I between the great groups which are the atom s of 8o-_ j ctetyi In a community so situated, the legislation o^ assemblies and the jurisdiction of Courts reaches only to the heads of families, and to every other individual the rule of conduct is the law of his home, of which his Parent is the legislator. But the sphere of civil law, small at first, tends steadily to enlarge itself. The agents of legal change. Fictions, Equity, and Legislation, are brought in turn to bear on the primeval institutions, and at every point of the pro- gress, a greater number of personal rights and a larger amount of property are removed from the do- mestic forum to the cognizance of the public tribu- nals. The ordinances of the government obtain gradually the same efficacy in private concerns as in matters of state, and are no longer liable to be M 4 K 1 - •—-, .. T—r- 'W%n a_* . . . * *« ..:' ^ ^ ' •*.*. . -^ -.: *:>^ **••*. ! T ^ ^ f. .-. >. 1 1 r> >... ^ * . »- \ \ ^ V ^ V cttAF. V. DISINTEGRATION OP THE FAMILY. 169 societies not absolutely stationar^'^ in which the col- lapse of the ancient organisation can only be perceived by careful study of the phenomena they present. But, whatever its pace, the change has not been subject to reaction or recoil, and apparent retarda- tions will be found to have been occasioned through the absorption of archaic ideas and customs from some entirely foreign source. Nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and ^ duties which have their origin in the Family. It is \ Contrac t. Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved t oward? a phase of social order in which all these relations arise from the free agreement of Individuals . In Western Europe the progress achieved in this direction has been considerable. Thus the status of the Slave has disappeared — it has been superseded by the contrac- tual relation of the servant to his master. The status of the Female under Tutelage, if the tutelage be understood of persons other than her husband, has also ceased to exist ; from her coming of age to her marriage all the relations she may form are relations of contract. So too the status of the Son under Power has no true place in law of modem European societies. If any civil obligation binds together the Parent and the child of full age, it is one to which only contract 170 PRIMITIVE SOCIETY AND ANCIENT LAW. chap. t. gives its legal validity. The apparent exceptions are exceptions of that stamp which illustrate the rule. The chUdbeforeyearsof discretion, the orphan under guardianship, the adjudged lunatic, have all their capacities and incapacities regulated by the Law of Persons. But why ? The reason is differently expressed in the conventional language of different systems, but in substance it is stated to the same effect by all. The great majority of Jurists are constant to the principle that the classes of persons just mentioned are subject to extrinsic control on the single ground that they do not possess the faculty of forming a judgment on their own interests ; in other words, that they are wanting in the first essential of an engagement by Contract. The word Status may be usefully employed to construct a formula expressing the law of progress thus indicated, which, whatever be its value, seems to me to be sufficiently ascertained. AR the forms of Status taken notice of in the Law of Persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the Family. If then we employ Status, agreeably with the usage of the best writers, to signify these personal conditions only, and avoid applying the term to such conditions as are the immediate or remote result of agreement, we may say that the movement of. the progressive societies has hitherto been a movement from Status to Contract. CHAP. Ti. TESTAMENTS. 171 CHAP. VI. THE EARLY HISTORY OF TESTAMENTARY SUCCESSIOK. If an attempt were made to demonstrate in England the superiority of the historical method of investiga" tion to the modes of inquiry con7e5m^ Jiris^- prudence which are in fashion among us, no depart- ment of Law would better serve as an example than "ypRtRTTi^Tj i^ or AY illg, Its capabilities it owes to its great length and great continuity. At the beginning of its history we find ourselves in the very infancy of the social state, surrounded by conceptions which it requires some effort of mind to realise in their an- cient form ; while here, at the other extremity of its line of progress, we are in the midst of legal notions which are nothmg more than those same conceptions \ disguised by the phraseology and by the habits of thought which belong to modem times, and exhibit- ing therefore a difficulty of another kind, the diffi- culty of believing that ideas which form part of our everyday mental stock can really stand in need of analysis and examination. The growth of the Law of 172 TESTAMENTARY LAW. chap. vi. Wills between these extreme points can be traced with remarkable distinctness. It was much less in- terrupted at the epoch of the birth of feudalism, than the history of most other branches of law. It is, in- deed, true that as regards aU provinces of jurispru- dence, the break caused by the division between ancient and modem history, or in other words by the dissolution of the Roman empire, has been very greatly exaggerated. Indolence has disinclined many writers to be at the pains of looking for threads of connection entangled and obscured by the confusions of six troubled centuries, while other inquirers, not naturally deficient in patience and industry, have been misled by idle pride in the legal system of their country, and by consequent unwillingness to confess its obligations to the jurisprudence of Rome. But these unfavourable influences have had comparatively little effect on the province of Testamentary Law. The barbarians were confessedly strangers to any such conception as that of a Will. The best authorities agree that there is no trace of it in those parts of their written codes which comprise the customs practised by them in their original seats, and in their subsequent settlements on the edge of the Roman Empire. But soon after they became mixed with the population of the Roman provinces they appropriated from the Imperial jurisprudence the conception of a Will, at first in part, and after- CHAP. VI. INFLUENCE OF THE CHURCH. J 73 wards in all its integrity. The influence of thcNj Church had much to do with this rapid assimilation. \ The ecclesiastical power had very early succeeded to those privileges of custody and registration of Testa- ments which several of the heathen temples had en- joyed ; and even thus early it was almost exclusively to private bequests that the religious foundations owed their temporal possessions. Hence it is that the decrees of the earliest Provincial Councils per- petually contain anathemas against those who deny the sanctity of Wills. Here, in England, Church in- fluence was certainly chief among the causes which by universal acknowledgment have prevented that discontinuity in the history of Testamentary Law, which is sometimes believed to exist in the history of other provinces of Jurisprudence. The jurisdiction over one class of Wills was delegated to the Eccle- siastical Courts, which applied to them, though not always intelligently, the principles of Roman juris- prudence ; and, though neither the courts of Common Law nor the Court of Chancery owned any positive obligation to follow the Ecclesiastical tribunals, they could not escape the potent influence of a system of settled rules in course of application by their side. The English law of testamentary succession to per- sonalty has become a modified form of the dispen- sation under which the inheritances of Roman citizens were administered. 174 ANCIENT WILLS. chat. vi. It is not difficult to point out the extreme difference of the conclusions forced on us by the historical treat- ment of the subject, from those to which we are con- ducted when, without the help of history, we merely strive to analyse our primd facie impressions. I sup- pose there is nobody who, starting from the popular or even the legal conception of a WUl, would not imagine that certain qualities are necessarily attached to it. He would say, for example, that a Will necessarily takes effect aidegiluiS^y^ — ^that it is SECaCi^^ i^ot known as a matter of course to persons taking interests under its provisions, — that it is revocable^ i.e. always capable of being superseded by a new act of testation. Yet I shall be able to show that there was a time when none of these characteristics belonged to a Will. The Testaments from which our Wills are directly descended at first took effect immediately on their exe- cution ; they were not secret ; they were not revocable. Few legal agencies are, in fact, the fruit of more complex historical agencies than that by which a man's written intentions control the posthumous dis- position of his goods. Testaments very slowly and gradually gathered round them the qualities I have mentioned ; and they did this from causes and under pressure of events which may be called casual, or which at any rate have no interest for us at present, except so far as they have affected the histoiy of law. T ; CHAJ^. VI. NATURAL RIGHT OF TESTATION. 175 At a tune when legal theories were more abundant than at present, — ^theories which, it is true, were for the most part gratuitous and premature enough, but which nevertheless rescued jurisprudence from that worse and more ignoble condition, not unknown to ourselves, in which nothing like a generalisation is aspired to, and law is regarded as a mere empirical pursuit — it was the fashion to explain the ready and apparently intuitive perception which we have of certain qualities in a Will, by saying that they were natural to it, or, as the phrase would run in j ^ ^ full, at tached to it by the Lawj)f Nature, Nobody, I imagine, would affect to maintain such a doctrine, when once it was ascertained that aU these character- istics had their origin within historical memory ; at the same time, vestiges of the theory of which the doctrine is an offshoot, linger in forms of expression which we all of us use and perhaps scarcely know how to dispense with. I may illustrate this by mention- ing a position common in the legal literature of the 17th century. The jurists of that period very com- monly assert that the power of Testation itself is of Natural Law, that it is a right conferred by the Law of Nature. Their teaching, though all persons may not at once see the connection, is in substance followed by those who affirm that the right of dictating or controlling the posthumous disposal of property is a necessary or natural consequence of the proprietary 176 NATURAL RIGHT OF TESTATION. chap. vi. rights themselves. And every student of technical jurisprudence must have come across the same view, clothed in the language of a rather different school, which, in its rationale of this department of law, treats succession ex testamento as the mode of devolu- tion which the property of deceased persons ought primarily to follow, and then proceeds to account for succession ab inteatato as the incidental provision of the lawgiver for the discharge of a function which was only left unperformed through the neglect or misfortune of the deceased proprietor. These opinions are only expanded forms of the more compendious doctrine that Testamentary disposition is an institu- tion of the Law of Nature. It is certainly never quite safe to pronounce dogmatically as to the range of association embraced by modem minds, when they reflect on Nature and her Law; but I believe that most persons, who affirm that the Testamentary Power is of Natural Law, may be taken to imply either that, as a matter of fact, it is universal, or that nations are prompted to sanction it by an original in- stinct and impulse. With respect to the first of these positions, I think that, when explicitly set forth, it can never be seriously contended for in an age which has seen the severe restraints imposed on the Testa- mentary Power by the Code NapoUon^ and has wit- nessed the steady multiplication of systems for which the French codes have served as a model. To the CHAP. Yi. NATURE OF A WILL. 177 second assertion we must object that it is contrary to the best-ascertained facts in the early history of law, and I venture to affirm generally that, in all indi- genous societies, aconditionof jurisprudence in which Testamentary privileges are not allo wed, or rather not contemplated, h as p receded that later stage of legal development in which the mere will oTTKS^ro- prietor is permitted under more or less of restriction to override the claims of his kindred in blood. The conception of a Will or Testament cannot be considered by itself. It is a member, and not the first, of a series of conceptions. In itself a Will is simply the instrument by which the intention of the testator is declared. It must be clear, I think, that before such an instrument takes its turn for dis- cussion, there are several preliminary points to be examined, — as for example, what is it, what sort of right or interest, which passes from a dead man on his decease ? to whom and in what form does it pass ? and how came it that the dead were allowed to control the posthumous disposition of their property ? Thrown into technical language, the dependence of the various conceptions which contribute to the notion of a Will is thus expressed. A Will or Tes ta- ment is an instrument by which t he devolution of an inherita nce is prescribed. Inheritance is a form of universal succession. A universal succession is a succession to a universitas juris^ or university of 178 UNIVERSITAS JURIS- cnAP. VI. \ \. rights and duties. Inverting this order we have therefore to inquire what is a universitas juris ; what is a universal succession; what is the form of uni- versal succession which is called an inheritance. And there are also two further questions, independent to some extent of the points I have mooted, but demanding solution before the subject of Wills can be exhausted. These are, how came an inheritance to be controlled in any case by the testator's volition, and what is the nature of the instrument by which it came to be controlled ? The first question relates to the universitas juris ; that is, a university (or bundle) of rights and duties. universitas juris is a collection of rights and duties rjr lunited by the single circumstance of their having belonged at one time to some one person. It is as it were, the leg al clo thing of some^iven individual. It is not To^'^db^ grouping together any rights and any duties. It can only be constituted by taking all the rights and all the duties of a particular person. The tie which so connects a number of rights of property, rights of way, rights to legacies, duties of specific performance, debts, obligations to compensate -wrongs — which so connects all these legal privileges and duties together as to constitute them a universitas juris^ is the fact of their having attached to some individual capable of exercising them. Without this fact there is no university of rights and duties. The CHAP. VI. UNIVERSAL SUCCESSION. KD expression universitas juris is not classical, but for the notion jurisprudence is exclusively indebted to Roman law ; nor is it all difficult to seize. We must endeavour to collect under one conception the whole set of legal relations in which each one of us stands to the rest of the world. These, whatever be their character and composition, make up together a universitas juris ; \ and there is but little danger of mistake in forming the notion, if we are only careful to remember that duties enter into it quite as much as rights. Our duties may overbalance our rights. A man may owe more than he is worth, and therefore if a money value is set on his collective legal relations he may be what is called insolvent. But for all that the entire group of rights and duties which centres in him is not the less a *• juris universitas." We come next to a "universal succession.'^ A universal succession is a succession to a universitas juris. It occurs when one man is invested with the kjgal clothing of another, becoming at the same moment subject to all his liabilities and entitled to all his rights. In order that the universal succession may be true and perfect, the devolution must take place uno ictu^ as the jurists phrase it. It is of course possible to conceive one man acquiring the whole of the rights and duties of another at different periods, as for example by successive purchases ; or ho might acquire them in different capacities, part as If 2 180 UNIVERSAL SUCCESSION. chap. vi. heir, part as purchaser, part as legatee. But though the group of rights and duties thus made up should in fact amount to the whole legal personality of a particular individual, the acquisition would not be a universal succession. In order that there may be a true universal succession, the transmission must be such as to pass the whole aggregate of rights and duties at the same moment and in virtue of the same legal capacity in the recipient. The notion of a universal succession, like that of a juris universitas, is permanent in jurisprudence, though in the English legal system it is obscured by the great variety of capacities in which rights are acquired, and, above all, by the distinction between the two great provinces of English property, "realty" and "personalty." The succession of an assignee in bankruptcy to the entire property of the bankrupt is,' however, a uni- versal succession, though as the assignee only pays debts to the extent of the assets this is only a modified form of the primary notion. Were it common among us for persons to take assignments of all a man's property on condition of paying all his debts, such transfers would exactly resemble the universal suc- cessions known to the oldest Roman Law. When a Roman citizen adrogated a son, i. e. took a man, not already under Patria Potestas, as his adoptive child, he succeeded universally to the adoptive child's estate, i.e. he took all the property and became liable fo r all CHAP. VI. THE UNIVERSAL SUCCESSOR. IHl the o bligati ons. Several other forms of universal succession appear in the primitive Roman Law, but infinitely the most important and the most durable of all was that one with which we are more immediately concerned, Haereditas or Inheritance. Inheritance was a universal succession occurring at a death. The universal successor was Haeres or Heir. He stepped at once into all the rights and aU the duties of the dead man. He was instantly clothed with his entire legal person, and I need scarcely add that the special character of the Haeres remained the same, whether he was named by a Will or whether he took on an Intestacy. The term Haeres is no more emphati- cally used of the Intestate than of the Testamentary Heir, for the manner in which a man became Haeres had nothing to do with the legal character he sus- tained. The dead man's universal successor, however he became so, whether by Will or by Intestacy, was his Heir. But the Heir was not necessarily a single person. A groupofgersons considered in law as a single unit, might succeed as co-heirs to the Inheritance. 'tsr^e now quote the usual Roman definition of an Inheritance. The reader will be in a posi- tion to appreciate the full force of the separate terms. Hcereditas est successio in unit^ersum jus quod defunctus habuit ( " an inheritance is a succession to the entire legal p c^fn^ of a deceased man "). The notion was that, though the physical person of the 11 3 182 TII£ HEIR. chap. vi. deceased had perished^ his legal personality survived and descended unimpaired on his Heir or Co-heirs, in whom his identity (so far as the law was con- cerned) was continued. Our own law, in constitu- ting the Executor or Administrator the representative of the deceased to the extent of his personal assets, may serve as an illustration of the theory from which it emanated, but, although it illustrates, it does not explain it. The view of even the later Roman Law required a closeness of correspondence between the position of the deceased and of his Heir which is no feature of an English representation; and in the primitive jurisprudence everything turned on the continuity of succession. UnlessjprovisbiLSEasj]^ in the will for the instant devolution of the testator's rights and duties on the Heir or Co-heirs, the testa- 'x \ ment lost all its effect. In modem Testamentary jurisprudence, as in the later Roman law, the object of first importance is the execution of the testator's intentions. In the ancient law of Rome the subject of corresponding carefulness was the bestowal of the Universal Succession. One of these rules seems to our eyes a principle dictated by common sense, while the other looks very much like an idle crotchet. Yet that without the second of them the first would never have come into being is as certain as any proposition of the kind can be. In order to solve this apparent paradox, and to CHAP. YI. PRIMITIVE SOdETY. 183 bring into greater clearness the train of ideas which I have been endeavouring to indicate, I must borrow the results of the inquiry which was attempted in the earlier portion of the preceding chapter. We saw one peculiarity invariably distinguishing the infancy of society. Men are regarded and treated, not as individuals, but always as members of a particular group. Everybody is first a citizen, and then, as a citizen, he is a member of his order — of an aristocracy or a democracy, of an order of patricians or plebeians ; or, in those societies which an unhappy fate has afflicted with a special perversion in their course of development, of a caste. Next, he is a member of a gens, house, or clan ; and lastly, he is a member of \as family. This last was the narrowest and most personal relation in which he stood ; nor, paradoxical as it may seem, was he ever regarded as himself^ as a distm ot^ili di vidua h . Jlis individuality was swallowed up in his family. I repeat the definition of a primi- tive society given before. It has for its units, not individuals, but groups of men united by the reality / or the fiction of blood-relationship. It is in the peculiarities of an undeveloped society that we seize the first trace of a universal succession. Contrasted with the organisation of a modern state, the commonwealths of primitive times may be fairly described as consisting of a number of little despotic governments, each perfectly distinct from the rest, V ! I If 4 184 THE PRIAflTlVE FAMILY. chap, vi- each absolutely controlled by the prerogative of a single monarch. But though the Patriarch, for we must not yet call him the Pater-familias, had rights thus extensive, it is impossible to doubt that he lay under an equal amplitude of obligations. If he governed the family, it was for its behoof. If he was lord of its possessions, he held them as trustee for his children and kindred. He had no privilege or position distinct from that conferred on him by his relation to the petty commonwealth which he governed. The / Family, in fact, was a Corporation ; and he was its representative or, we might almost say, its Public officer. He enjoyed rights and stood under duties, but the rights and the duties were, in the contempla- tion of his fellow-citizens and in the eye of the law, quite as much those of the collective body as his own. Let us consider for a moment the eflfect which would be produced by the death of such a representative. In the eye of the law, in the view of the civil magis- trate, the demise of the domestic authority would be a perfectly immaterial event. The person represent- ing the collective body of the family and primarily responsible to municipal jurisdiction would bear a diflferent name ; and that would be all. The rights and obligations which attached to the deceased head of thj honw would attach, without breach of con- tinuity, to his successor; for, in point of fact, they would be the rights and obligations of the family, and CHAP. VI. THE FAMILY A CORPORATION. 185 the family had the distinctive characteristic of a corporation — that it never died. Creditors would have the same remedies against the new chieftain as against the old, for the liability being that of the still existing family would be absolutely unchanged. All rights available to the family would be as available after the demise of the headship as before it — except that the Corporation would be obliged — if indeed language so precise and technical can be properly used of these early times — would be obliged to sue under a slightly modified name. The history of jurisprudence must be followed in its whole course, if we are to understand how gradually and tardily society dissolved itself into the component atoms of which it is now constituted — ^by what insensible gradations the relation of man to man substituted itself for the relation of the individual to his family and of families to each other. The point now to be attended to is that even when the revolu- tion had apparently quite accomplished itself, even when the magistrate had in great measure assumed the place of the Pater-familias, and the civil tribunal substituted itself for the domestic forum, nevertheless the whole scheme of rights and duties administered by the judicial authorities remained shaped by the influence of the obsolete privileges and coloured in every part by their reflection. There seems little question that the devolution of the Universitas Juris, 186 FAMILIES AND INDIVIDUALS. chap. vi. SO strenuously insisted upon by the Roman Law as the first condition of a testamentary or intestate suc- cession, was a feature of the older form of society which men's minds had been unable to dissociate from the new, though with that newer phase it had no true or proper connection. It seems, in truth, that the pro- longation of a man's legal existence in his heir, or in a group of co-heirs, is neither more nor less than a cha- 11 riiY^^ist.io. of /A/?/ am27y tran a^^rr^^ '^y « fi^finn to the individual' Succession, in corporations is necessarily universal, and the family was a corporation. Corpo- rations never die. The decease of individual members makes no difference to the collective existence of the aggregate body, and does not in any way affect its legal incidents, its faculties or liabilities. Now in the idea of a Roman universal succession all these qualities of a corporation seem to have been transferred to the individual citizen. His physical death is allowed to exercise no effect on the legal position which he filled, apparently on the principle that that position is to be adjusted as closely as possible to the analogies of a family, which, in its corporate character, was not of course liable to physical extinction. I observe that not a few continental jurists have much difficulty in comprehending the nature of the connection between the conceptions blended in a uni- versal succession, and there is perhaps no topic in the philosophy of jurisprudence on which their specula- CHAP. VI. CORPORATI ONS SOLE, 187 tions, as a general rule, possess so little value. But the student of English law ought to be in no danger of stumbliag at the analysis of the idea which we are examining. Much light is cast upon it by a fiction in our own system with which all lawyers are familiar, English lawyers classify corporations as Corporations aggregate and Corporations sole. A Corporation aggregate is a true Corporation, but a Corporation sole is an individual, being a member of a series of individuals, who is invested by a fiction with the qualities of a Corporation. I need hardly cite the \k King or the Parson of a Parish as instances of "Cor- fi porations sole. Th e capacity or office is here consi- At^T*t>A Q^|g^. from the particular person who froni , time to time may occupy it, and, this capacity being perpetual, the series of individuals who fill it are clothed with the leading attribute of Corporations — Perpetuity. Now in the older theory of Roman Law j the individual bore to the family precisely the same relation which in the rationale of English jurispru- dence a Corporation sole bears to a Corporation* aggregate. The derivation and association of ideas are exactly the same. In fact, if we say to ourselves that for purposes of Roman Testamentary Juris- prudence each individual citizen was a Corporation sole, we shall not only realise the full conception of an inheritance, but have constantly at command the clue to the assumption in which it originated. It is 18S INTESTATE SUCCESSION. chap. vi. an axiom with us that the King never dies, being a Corporation sole. His capacities are instantly filled by his successor, and the continuity of dominion is not deemed to have been interrupted. With the Romans it seemed an equall y simple^ and natural process, to eliminate the fact of death from the devo- lution of rij[&gand obli^tions. The testator lived on in his heir or in the group of his co-heirs. He was in law the same person with them, and if any one in his testamentary dispositions had even constructively violated the principle which united his actual and his posthumous existence, the law rejected the defective instrument, and gave the inheritance to the kindred in blood, whose capacity to fulfil the conditions of heirship was conferred on them by the law itself, and not by any document which by possibility might be erroneously framed. When a Roman citizen died intestate or leaving no valid Will, his descendants or kindred became his heirs according to a scale which will be presently described. The person or class of persons who suc- ceeded did not simply represent the deceased, but, in conformity with the theory just delineated, they con^ tinned his civil life, his legal existence. The same results followed when the order of succession was determined by a Will, but the theory of the identity between thftdgfld mftn-attd4n8 hem was certainly much older than any fonn^f X§?j^5ffl£lli-Wi plw Testji- CHAP. VI. OLD NOTION OF INHERITANCE, 189 mentary jurisprudence. This indeed is the proper moment for suggesting a doubt which will press on us with greater force the further we plumb the depths of this subject, — whether wUls would ever have come into being at all if it had not been for these remark- able ideas connected with universal succession. Tes- tamentary law is the application of a principle which may be explained on a variety of philosophical hy- potheses as plausible as they are gratuitous; it is interwoven with every part of modem society, and it is defensible on the broadest grounds of general expediency. But the warning can never be too often repeated, that the grand source of mistake in questions of jurisprudence is the impression that those reasons which actuate us at the present moment, in the main- tenance of an existing institution, have necessarily anything in common with the sentiment in which the institution originated. It is certain that, in the old Roman Law of Inheritance, the notion of a will or testament is inextricably mixed up, I might almost say confounded, with the theory of a man's posthu- mous existence in the person of his heir. The conception of a universal succession, firmly as it has taken root in jurisprudence, has not occurred spontaneously to the framers of every body of laws. Wherever it is now found, it may be shown to have descended from Roman law ; and with it have come down a host of legal rules on the subject of Testa- IDO SUCCESSION TO THE FAMILY. chap. vi. ments and Testamentary gifts, which modern practi- tioners apply without discerning their relation to the parent theory. But, in the pure Roman jurisprudence, the principle that a man lives on in his Heir — the elimination, if we may so speak, of the fact of death — is too obviously for mistake the centre round which the whole Law of Testamentary and Intestate suc- cession is circling. The unflinching sternness of the Roman law in enforcing compliance with the govern- ing theory would in itself suggest that the theory grew out of something in the primitive constitution of Roman society ; but we may push the proof a good way beyond the presumption. It happens that several technical expressions, dating from the earliest insti- tution of Wills at Rome, have been accidentally pre- served to us. We have in Gains the formula of investiture by which the universal successor was created. We have the ancient name by which the person afterwards called Heir was at first designated. We have further the text of the celebrated clause in the Twelve Tables by which the Testamentary power was expressly recognised, and the clauses regulating Intestate Succession have also been preserved. All these irchaic phrases have one salient peculiarity. They in- dicate that what passed from the Testator to the Heir ivas the Famihf^ that is, the aggregate of rights and iuties contained in the Patria Potestas and growing i out of it. The material property is in three instances CHAP. VI. ORIGINAL OBJECT OF WILLS. 191 not mentioned at all ; in two others, it is visibly named as an adjunct or appendage of the Family, The original Will or Testament was therefore an instru- ment, or (for it was probably not at first in writing) a proceeding, by which the devolution of the Family was regulated. It was a mode of declaring who was to have the chieftainship, in succession to the Testator. When Wills are understood to have this for their original object, we see at once how it is that they came to be connected with one of the most curious relics of ancient religion and law, the sacra^ or Family Rites. These sacra were„ the^ Roman form of an institution which shows itself \ ^ ^, . wherever society has not wholly shaken itself free from its primitive clothing. They are the sacrifices and ceremonies by which the brotherhood of the family is commemorated, the pledge and the witness of its perpetuity. Whatever be their nature, — whether it be true or not that in all cases they are the worship of some mythical ancestor, — they are * everywhere employed to attest the sacredness of the family-relation ; and therefore they acquire prominent significance and importance, whenever the continuous existence of the Family is endangered by a change in the person of its chief. Accordingly, we hear most about them in connection with demises of domestic sovereignty. Among the Hindoos, the right to in- herit a dead man's property is exactly co-extensive 192 THE HINDOO SACRA. chap. vi. ^ith t he duty of performing his obsequies. If the rites are not properly performed or iiot"performed by the proper person, no relation is considered as es- tablished between the deceased and anybody surviving him; the Law of Succession does not apply, and nobody can inherit the property. Every great event in the life of a Hindoo seems to be regarded as leading up to and bearing upon these solemnities. If he marries, it is to have children who may celebrate them after his death ; if he has no children, he lies under the strongest obligation to adopt them from another family, "with a view," writes the Hindoo doctor, "to the funeral cake, the water, and the solemn sacrifice." The sphere preserved to the Roman sacra in the time of Cicero, was not less in extent. It embraced Inheritances and Adoptions. No Adop- tion was allowed to take place without due provision for the sacra of the family from which the adoptive son was transferred, and no Testament was allowed to distribute an Inheritance without a strict apportion- ment of the expenses of these ceremonies among the different co-heirs. The differences between the Roman law at this epoch, when we obtain our last glimpse of the sacra^ and the existing Hindoo system, are most instructive. Among the Hindoos, the religious element in law has acquired a complete predominance. Family sacrifices have become the keystone of all the Law of Persons and much of the Law of Things. CHAP. VI. ROMAN AND HINDOO SACRA. 193 They have even received a monstrous extension, for it is a plausible opinion that the self-immolation of the widow at her husband's funeral, a practice continued to historical times by the Hindoos, and commemorated in the traditions of several Indo-European races, was an addition grafted on the primitive sacra^ under the influence of the impression, which always accompanies the idea of sacrifice, that human blood is the most precious of all oblations. With the Romans, on the contrary, the legal obligation and the religious duty have ceased to be blended. The necessity of solemnising the sacra forms no part of the theory of civil law, but they are under the separate jurisdic- tion of the College of Pontiffs. The letters of Cicero to Atticus, which are fiill of allusions to them, leave no doubt that they constituted an intolerable burden on Inh e ritanc es; but the point of develop- ment at which law breaks away from religion has: been passed, and we are prepared for their entire dis- appearance from the later jurisprudence. In Hindoo law there is no such thing as a true Will. The place filled by Wills is occupied by Adop- tions. We can now see the relation of the Testa- mentary Power to the Faculty of Adoption, and the reason why the exercise of either of them could call up a peculiar solicitude for the performance of the sacra. Both a Will and an Adoption threaten a dis- tortion of the ordinary course of Family descent, but o \ 194 WILLS AND ADOPTIONS. chap. vi. they are obviously contrivances for preventing the descent being wholly interrupted, when there is no succession of kindred to carry it on. Of the two expedients Adoption, the factitious creation of blood-relationship, is the only one which has sug- gested itself to the greater part of archaic socie- ties. The Hindoos have indeed advanced one point on what was doubtless the antique practice, by allow- ing the widow to adopt when the father has neg- lected to do so, and there are in the local customs of Bengal some faint traces of the Testamentary powers. But to the Komans belongs pre-eminently the credit o f inventmplEKe Wil l, the institution which, next to the Contract, has exercised the greatest influence in transforming human society. We must be careful not to attribute to it in its earliest shape the functions which have attended it in more recent times. Itj was at first, not a mode of distributing a dead man's/ goods, but one among several ways of transferringj the representation of the household to a new chief J The goods descend no doubt to the Heir, but that is only because the government of the family carries with it in its devolution the power of disposing of the common stock. We are very far as yet from that stage in the history of Wills in which they become powerful instruments in modifying society through the stimulus they give to the circulation of property and the plasticity they produce in pro- CHAP. Yi. ROMAN IDEAS OF SUCCESSION. 195 prietary rights. No such consequences as thes.e ap- pear in fact to have been associated with the Testa- mentary power even by the latest Roman lawyers. It will be found that Wills were never looked upon' in the Roman community as a contrivance for part- ing Property and the Family, or for creating a variety of miscellaneous interests, but rather as a means of making a better provision for the members of a household than could be secured through the rules of Intestate succession. We may suspect in- deed that the associations of a Roman with the ^ practice of will-making were extremely different from those familiar to us nowadays. The habit of regarding Adoption and Testation as modes of con- tinuing the Family cannot but have had something / to do with the singular laxity of Roman notions as n^ to the inheritance of sovereignty. It is impossible . not to see that the succession of the early Roman | Emperors to each other was considered reasonably regular, and that, in spite of all that had occurred, no absurdity attached to the pretension of such Princes as Theodosius or Justinian to style them- selves Caesar and Augustus. When the phenomena of primitive societies emerge into light, it s^ems impossible to dispute a propo- sition which the jurists of the 17th century con- sidered doubtful, that Intestate Inheritance is a more ancient institution than Testamentary Succession. o 2 196 RARITY OP TESTAMENTARY POWER, chap. vi. As soon as this is settled, a question of much in- terest suggests itself, how and under what conditions were the directions of a will first allowed to regulate the devolution of authority over the household, and consequently the posthumous distribution of pro- perty. The difficulty of deciding the point arises from the rarity of Testamentary power in archaic communities. It is doubtful whether a true power of testation was known to any original society except the Roman. Rudimentary forms of it occur here and there, but most of them are not exempt from the suspicion of a Roman origin. The Athenian II will was, no doubt, indigenous, but then, as will f appear presently, it was only an inchoate Tes tamen t. As to the Wills which are sanctioned by the bodies of law which have descended to us as the codes of the barbarian conquerors of Imperial Rome, they are almost certainly Roman. The most penetrating Ger- man criticism has recently been directed to these leges Barharorum^ the great object of investigation being to detach those portions of each system which formed the customs of the tribe in its original home from the adventitious ingredients which were bor- rowed from the laws of the Romans. In the course of this process, one result has invariably disclosed itself, that the ancient nucleus of the code contains (n o trace o f a W ill. Whatever testamentary law exists, has been taken from Roman jurisprudence. CHAP. Yi. PRIMITIVE OPERATION OP WILLS. 197 Similarly, the rudimentary Testament which (as I am informed) the Rabbinical Jewish law provides for, has been attributed to contact with the Romans* The only form of testament, not belonging to ekJRp- man or Hellenic society, which can reasonably be supposed indigenous, is that recognised by the usages of the pirovince of Bengal; and the testament of Bengal is only a rudiinentary Will, . The evidence, however, such as it is, seems to point to the conclusion that Testaments are at first only allowed to take efiect on failure of the persons entitled to have the inheritance by right of blood genuine or fictitious. Thus, when Athenian citizens were empowered for the first time by the Laws of Solon to execute Testaments, they were forbidden to disinherit their direct male descendants. So too, the Will of Bengal is only permitted to govern the succession so far as it is consistent with certain overriding claims of the family. Again, the original institutions of the Jews having provided nowhere for the privileges of Testatorship, the later Rabbini- cal jurisprudence, which pretends to supply the casus omissi of the Mosaic law, allows the Power of Testa* tion to attach when all the kindred entitled under the Mosaic system to succeed have failed or are undiscoverable. The limitations by which the ancient German codes hedge in the testamentary jurispru- dence which has been incorporated with them are o 3 i 198 OLD GERMANIC WILLS^ chaf. vi. also significant, and point in the same direction. It is the peculiarity of most of these German laws, in the only shape in which we know them, that, besides the allod or domain of each household, they recognise several subordinate kinds or orders of property, each of which probably representB a separate transfiision of Roman principles into the primitive body of ^^ tt Teutonic usage. The primitive German or allodial hP^ y^ I property is strictly reserved to the kindred. Not ^ \ only is it incapable of being disposed of by testa- ment but it is scarcely capable of being alienated by conveyance inter vivos. The ancient German law, like the Hindoo jurisprudence, makes the male children co-proprietors with their father, and the endowment of the family cannot be parted with except by the consent of all its members. But the other sorts of property, of more modem origin and lower dignity than the allodial possessions, are much more easily alienated than they, and follow much more lenient rules of devolution. Women and the descendants of women succeed to them, obviously on the principle that they lie outside the sacred pre- cinct of the Agnatic brotherhood. Now, it is on these last descriptions of property, and on these only, that the Testaments borrowed from Rome were at first allowed to operate. These few indications may serve to lend additional plausibility to that which in itself appears to be the CHAP. VI. THE COMITIA CALATA. 199 most probable explanation of an ascertained fact in the early history of Roman Wills. We have it stated on abundant authority that Testaments, during the primitive period of the Roman State, were executed in the Comitia Calata, that is, in the Comitia Ouriata, or Parliament of the Patrician Burgiiers W' ' RRiue, when aj ssemble d for Private Business . This mode of execution Itas b^^^^WTOupc^of the assertion, handed down by one generation of cbnlims U> an- other, that every WiU at one era of Roman history was a solemn legislative enactment. But there is no necessity whatever for resorting to an explanation which has the defect of attributing far too much precision to the proceedings of the ancient assembly. The proper key to the story concerning the execu- tion of Wills in the Comitia Calata must no doubt be sought in the oldest Roman Law of intestate succession. The canons of primitive Roman juris- prudence regulating the inheritance of relations from each other were, so long as they remained unmodified by the Edictal Law of the Praetor, to the following effect : — First, the sui or direct descendants who had never been emancipated succeeded. On the failure of the 8uiy the Nearest Agnate came into their place, that is, the nearest person or class of the kindred who was or might have been imder the same Patria Potestas with the deceased. The third and last de- gree came next, in wliich the inheritance devolved o 4 20O JURISDICTION OF THE COMITIA. chap. vi. on the gentiles that is on the collective members of the dead man's gena or House. The House, I have explained already, was a fictitious extension of the fiEtmily, consisting of all Roman Patrician citizens who bore the same name, and who, on the ground of bearing the same name, were supposed to be de- scended from a common ancestor. Now the Patri- \ cian Assembly called the Comitia Curiata was a Legislature in which Gentes or Houses were exclu- sively represented. It was a representative assembly of the Roman people, constituted on the assumption that the constituent unit of the state was the Gens. This being so, the inference seems inevitable, that the cognizance of Wills by the Comitia was connected with the rights of the Gentiles, and was intended to secure them in their privilege of ultimate inherit- ance. The whole apparent anomaly is removed, if we suppose that a Testament could only be made when the testator had no gentiles discoverable, or when they waived their claims, and that every Testament was submitted to the General Assembly of the Roman Gentes, in order that those aggrieved by its dispositions might put their veto upon it if they pleased, or by allowing it to pass might be presumed to have renounced their reversion. It is possible that on the eve of the publication of the Twelve Tables this vetoing power may have been greatly curtailed or only occasionally and capriciously CHAP. Yi. PLEBEIAN WILLS. 201 exercised. It is much easier, however, to indicate the meaning and origin of the jurisdiction confided to the Comitia Galata, than to trace its gradual de* velopment or progressive decay. The Testament to which the pedigree of all modem Wills may be traced is not, however, the Testament executed in the Calata Comitia, but another Testa- ment designed to compete with it and destined to supersede it. The historical importance of this early Roman Will, and the light it casts on much of ancient thought, will excuse me for describing it at some length. When the Testamentary power first discloses itself to us in legal history, there are signs that, like almost all the great Roman institutions, it was the subject of contention between the Patricians and the Plebeians. The effect of the political maxim, Plebs Gentem non habetj " a Plebeian cannot be a member of a House," was entirely to exclude the Plebeians from the Comitia Curiata* Some critics have accordingly supposed that a Plebeian could not have his Will read or recited to the Patrician Assembly, and was thus deprived of Testamentary privileges altogether. Others have been satisfied to point out the hardships of having to submit a proposed Will to the unfiriendly juris- diction of an assembly in which the Testator was not represented. Whatever be the true view, a form 202 THE PLEBEIAN WILL. cbap. vi. of Testament came into use, which has all the cha- racteristics of a contrivance intended to evade some distasteful obligation. The Will in question was a conveyance inter vivos^ a complete and irrevocable alienation of the Testator's family and substance to the person whom he meant to be his heir. The strict rules of Roman law must always have per- mitted such an alienation, but, when the transaction was intended to have a posthumous effect, there may have been disputes whether it was valid for Testa- mentary purposes without the formal assent of the Patrician Parliament. If a difference of opinion existed on the point between the two classes of the Roman population, it was extinguished, with many other sources of heartburning, by the great Decem- viral compromise. The text of the Twelve Tables is still extant which says, " Fater familias uti de pecunid tuteldve ret suob leg&aait^ ita jus esto — a law which can hardly have had any other object than the legalisation of the Plebeian Will. It is well known to scholars that, centuries after the Patrician Assembly had ceased to be the legis- lature of the Roman Stat^, it still continued to hold formal sittings for the convenience of private busi- ness. Consequently, at a period long subsequent to the publication of the Decemviral Law, there is reason to believe that the Comitia Calata still as- sembled for the validation of Testaments. Its pro- CHAP. VI. END OF THE COMITIA CALATA. 203 bable functions may be best indicated by saying that it was a Court of Registration, with the under- standing however that the Wills exhibited were not enroUedj but simply recited to the members, who were supposed to take note of their tenor and to commit them to memory. It is very likely that this form of Testament was never reduced to writing at all, but at all events if the Will had been ori- ginally written, the office of the Comitia was cer- tainly confined to hearing it read aloud, the docu- ment being retained afterwards in the custody of the Testator, or deposited under the safeguard of some religious corporation. This publicity may have been one of the incidents of the Testament executed in the Comitia Calata which brought it into popular disfavour. In the early years of the Empire the Comitia still held its meetings, but they seem to have lapsed into the merest form, and few Wills, or none, were probably presented at the periodical sitting. It is the ancient Plebeian Will — the alternative of the Testament just described — which in its remote effects has deeply modified the civilisation of the modem world. It acquired at Rome all the popu- larity which the Testament submitted to the Calata Comitia appears to have lost. The key to all its characteristics lies in its descent from th ^mandpium^ or ancient Roman conveyance, a proceeding to I' -'i 204 THE MANCIPATION. chap. vi. which we may unhesitatingly assign the parentage of two great institutions without which modem society can scarcely be supposed capable of holding together, the Contract and the Will. ^ The manctpium, or as the word would exhibit itself in later Latinity, the Mancipation, carries us back by its incidents to the infancy of civil society. As it sprang from tunes long anterior, if not to the invention, at all events to the popularisation, of the art of writing, gestures, S3rmbolical acts, and solemn phrases take the place of documentary forms, and a lengthy and intricate ceremonial is intended to call the atten- tion of the parties to the importance of the trans- action, and to impress it on the memory of the wit- nesses. The imperfection too of oral, as compared with written, testimony necessitates the multipli- cation of the witnesses and assistants beyond what in later times would be reasonable or intelligible (limits. The Roman Mancipation required the presence first of all of the parties, the vendor and vendee, or we should perhaps rather say, if we are to use modern legal language, the grantor and grantee. There were also no less than Jive witnesses ; and an anomalous personage, the Libripens, who brought with him a pair of scales to weigh the uncoined copper money of ancient Rome. The Testament we are considering — the Testament per ces et libram^ " with CHAP. VI. WILL WITH COPPER AND SCALES. 205 the copper and the scales," as it long continued to be technically called — was an ordinary Mancipa- tion with no change in the form and hardly any in words. The Testator was the grantor; the five witnesses and the libripens were present ; and the place of grantee was taken by a person known technically as the familicB emptor^ the Purchaser of the Family. The ordinary ceremony of a Man- cipation was then proceeded with. Certain formal gestures were made and sentences pronounced. The Emptor familicB simulated the payment of a price by striking the scales with a piece of money, and finally the Testator ratified what had been done in a set form of words called the " Nuncugatiai' or publication of the transaction, a phrase which, I need scarcely remind the lawyer, has had a long history in Testamentary jurisprudence. It is ne- cessary to attend particularly to the character of the person called familicB emptor. There is no doubt that at first he was the Heir himself. The Testator conveyed to him outright his whole " familia," that is, all the irghts he enjoyed over and through the family; his property, his slaves, and all his ancestral privileges, together on the other hand with all his duties and obliga- tions. With these data before us, we are able to note several remarkable points in which the Mancipatory 206 MANCIPATORY WILLS. chap. vi. Testament, as it may be called, differed in its primi- tive fonn from a modem will. As it amounted to a conveyance out-and-out of the Testator's estate, it was not revocable. There could be no new exercise of a power which had been exhausted. Again, it was not secret. The Familiae Emptor, being himself the Heir, knew exactly what his rights were, and was aware that he was irreversibly entitled to the inheritance; a knowledge which the violences inseparable from the best-ordered ancient society rendered extremely dangerous. But perhaps the most surprising consequence of this relation of Testaments to Conveyances was the immediate vesting of the iBhmta.oe in tie Heir. This has seemed J incredible to not a few civilians, that they have spoken of the Testator's estate as vesting conditionally on the Testator's death, or as granted to him from a time uncertain, i. e. the death of the grantor. But down to the latest period of Roman jurisprudence there were a certain class of transactions which never admitted of being directly modified by a condition, or of being limited to or from a point of time. In / technical language they did not admit conditio or dies. Mancipation was one of them, and therefore, strange as it may seem, we are forced to conclude that the ' primitive Roman Will took effect at once, even though the Testator survived his act of Testation. • It is indeed likely that Roman citizens originally wm CHAP. VI. ANCIENT WILLS NOT WRITTEN- 207 made their Wills only in the article of death, and that a provision for the continuance of the Family eflfected by a man in the flower of life would take the form rather of an Adoption than of a Will. Still we must believe that, if the Testator did recover, he could only continue to govern his household by the sufferance of his Heir. Two or three remarks should be made before I ex- plain how these inconveniences were remedied, and how Testaments came to be invested with the charac- teristics now universally associated with them. The Testament was not necessarily written: at first, it seems to have been invariably oral, and, even in later times, the instrument declaratory of the bequests was only incidentally connected with the Will and formed no essential part of it. It bore in fact exactly the same relation to the Testament, which the deed lead- ing the uses bore to the Fines and Recoveries of old English law, or which the charter of feofl&nent bore to the feoffment itself. Previously, indeed, to the Twelve Tables, no writing would have been of the slightest use, for the Testator had no power of giving legacies, and the only persons who could be advan- taged by a will were the Heir or Co-heirs. But the extreme generality of the clause in the Twelve Tables soon produced the doctrine that the Heir must take the inheritance burdened by any directions which the Testator might give him, or, in other words, take it 208 THE PURCHASER OF THE FAMILY. chap, vi, subject to legacies. Written testamentary instru- ments assumed thereupon a new value, as a security against the fraudulent refusal of the heir to satisfy the legatees; hut to the last it ^ m p^ ^^^ '^^"^^'tnrV \ pleasur e to rely exclusively on the testimony of the witnesses, and to declare by word of mouth the legacies which the familuB emptor was commissioned to pay. The terms of the expression Emptor familice demand f notice. " Emptor" indicates that the WiU was literally a sale, and the word " familise," when compared with the phraseology in the Testamentary clause in the Twelve Tables, leads us to some instructive conclu- sions. " Familia," in classical Latinity, means always a man's slaves. Here, however, and generally in the language of ancient Roman law, it includes all per- sons under his Potestas, and the Testator's material property or substance is understood to pass as an adjunct or appendage of his household. Turning to the law of the Twelve Tables, it will be seen that it speaks of tutela ret suce^ " the guardianship of his sub- stance," a form of expression which is the exact reverse of the phrase just examined. There does not therefore appear to be any mode of escaping from the conclu- sion, that, even at an era so comparatively recent as that of the Decemviral compromise, terms denoting "household" and ** property" were blended in the current phraseology. If a man's household had been CHAP. VI. THE PR^aiTORIAN WILL. 209 spoken of as his property we might have explained the expression as pointing to the extent of the Patria Fotestas, but, as the interchange is reciprocal, we must allow that the form of speech carries us back to that primeval period in which property is owned by the family, and the family is governed by the citizen, so that the members of the community do not own their property and their family, but rather own their property through their family. At an epoch not easy to settle with precision, the Roman Praetors fell into the habit of acting upon Testaments solemnised in closer conformity with the spirit than the letter of the law. Casual dispensations became insensibly the established practice, till at length a wholly new form of Will was matured and regularly engrafted on the Edictal Jurisprudence. The new or Prcetorian Testament derived the whole^ of its impregnabifity from the Jus Honorarium or Equ ity of Rome. _ The Praetor of some particular year must have inserted a clause in his Inaugural Proclamation declaratory of his intention to sustain all Testaments which should have been executed with such and such solemnities; and, the reform having been found advantageous, the article relating to it must have been again introduced by the Praetor's successor, and repeated by the next in office, till at length it formed a recognised portion of that body of jurisprudence which from these successive incorpora* p 210 THE FR^ATTOBIAN WILL. chaf. vi. tions was styled the Perpetual or Continuous Edict. On examining the conditions of a valid Prsatorian Will they will be plainly seen to have been deter- mined by the requirements of the Mancipatory Tes- tament, the innovating Prsetor having obviously pre- scribed to himself the retention of the old formalities just so far as they were warrants of genuineness or securities against fraud. At the execution of the Mancipatory Testament seven persons had been pre- sent besides the Testator. Seven witnesses were accordingly essential to the Prsetorian Will : two of them corresponding to the libripens and familice emptor^ who were now stripped of their symbolical character, and were merely present for the purpose of supplying their testimony. No emblematic ceremony was gone through ; the Will was merely recited ; but then it is probable (though not absolutely certain) that a written instrument was necessary to perpetuate the evidence of the Testator's dispositions. At all events, whenever a writing was read or exhibited as a person's last Will, we know certainly that the Praeto- rian Court would not sustain it by special intervention, . unless each of the seven witnesses had severally affixed his seal to the outside. This is the first appearance of seeding in the history of jurisprudence, considered as a mode of authentication. It is to be observed that the seals of Roman Wills, and other documents of importance, did not simply serve as the index of the CHAP. VI. THE BONORUM POSSESSIO. 211 presence or assent of the signatary, but were literally fastenings which had to be broken before the writing could be inspected. The Edictal Law would therefore enforce t)ie dispo- sitions of a Testator, when, instead of being symbo- lised through the forms of mancipation, they were simply evidenced by the seals of seven witnesses. But it may be laid down as a general proposition, that the principal qualities of Roman property were in- communicable except through processes which were supposed to be coeval with the origin of the Civil Law. The Praetor therefore could not confer an Inheritance on anybody. He could not place the Heir or Co-heirs in that very relation in which the Testator had him- self stood to his own rights and obligations. All he could do was to confer on the person designated as Heir the practical enjo3rment of the property be- queathed, and to give the force of legal acquit- tances to his payments of the Testator's debts. When he exerted his powers to these ends, the Praetor was technically said to communicate the Bonorum Posaeasio. The Heir specially inducted under these circumstances, or Bonorum Possessor^ had every proprietary privilege of the Heir by the Civil Law. He took the profits and he could alienate, but then, for all his remedies for redress against wrong, he must go, as we should phrase it, not to the Common Law, but to the Equity side of the Praetorian. r 2 I I I 212 IMPROVEMENTS IN THE OLD WILL. chaf ▼!. Court. No great chance of error would be incurred by describing h ijn as hav ing m equitahh ffitfltf m-thr inlipriffgip.p.j hnt then, to secure ourselves against being deluded by the analogy, we must always recol- lect that in one year the Bonorum Possessio was operated upon a principle of Roman Law known as Usucapion, and the Possessor became Quiritarian owner of all the property comprised in the in- heritance. We know too little of the older law of Civil Pro- cess to be able to strike the balance of advantage and disadvantage between the different classes of remedies supplied by the Pnetorian Tribunal. It is certain, however, that, in spite of its many defects, the Mancipatory Testament by which the universitas juris devolved at once and unimpaired was never entirely superseded by the new Will ; and at a period less bigoted to antiquarian forms, and perhaps not quite alive to their significance, all the ingenuity of the Jurisconsults seems to have been expended on the improvement of the more venerable instrument. At the era of Gains, which is that of the Antonine Csesars, the great blemishes of the Mancipatory Will had been removed. Originally, as we have seen, the essential character of the formalities had required that the Heir himself should be the Purchaser of the Family, and the consequence was that he not only instantly acquired a vested interest in the Testator's Property, CHAP. VI. IMPROVEMENTS IN THE OLD WILL. 213 but was formally made aware of his rights. But the age of Gaius permitted some unconcerned person to offic iate as P urchaser of the Family. The Heir, therefore, was not necessanlytBfbrmed of the succes- sion to which he was destined; and Wills thence- forward acquired the property of secrecy. The sub- stitution of a stranger for the actual Heir in the functions of "FamiliaB Emptor" had other ulterior consequences. As soon as it was legalised, a Roman Testament came to consist of t^o parts or stages, — a Conveyance, which was a pure form, and a Nuncu- patio, or Publication. In this latter passage of the proceeding, the Testator either orally declared to the assistants the wishes which were to be executed after his death, or produced a written document in which his wishes were embodied. It was not probably till attention had been quite drawn off from the imaginary Conveyance, and concentrated on the Nuncupation \\ as the essential part of the transaction, that Wills / 1 were allowed to become r evocabl e. I have thus carried the pedigree of Wills some way down in legal history The root of it is the old Testament "with the copper and the scales,'' founded on a Mancipation or Conveyance. This ancient Will has, however, manifold defects, which are remedied, though only indirectly, by the Praetorian law. Meantime the ingenuity of the Jurisconsults effects, in the Common-Law Will or Mancipatory p 3 214 THE ROMAN WILL. chap. vi. Testament, the very improvements which the PraBtor may have concurrently carried out in Equity. These last ameliorations depend, however, on mere legal dex- terity, and we see accordingly that the Testameixtary Law of the day of Gains or Ulpian is only transi- tional. What changes next ensued we know not; but at length just before the reconstruction of the jurisprudence by Justinian, we find the subjects of the Eastern Roman Empire employing a form of Will of which the pedigree* is traceable to the PraBtorian Testament on one side, and to the Testament " with the copper and the scales" on the other. Like the Testament of the Praetor, it required no Mancipa- tion, and was invalid unless sealed by seven witnesses. Like the Mancipatory Will, it passed the Inheritance and not merely a Bonorum Possessio. Several, how- • ever, of its most important features were annexed by positive enactments, and it is out of regard to this threefold derivation from the Praetorian Edict, from the Civil Law, and from the Imperial Constitutions, that Justinian speaks of the Law of Wills in his own day as Jus Tripertitum. The new Testament thus described is the one generally known as the Roman Will. But it was the Will of the Eastern Empire only ; and the researches of Savigny have shown that in Western Europe the old Mancipatory Testament, with all its apparatus of conveyance, copper, and scales, continued to be the form in use far down in the Middle Ages. CHAP. YH. DISINHERISON OF CUILDREN. 215 CHAP. VIL ANCIENT AND MODERN IDEAS RESPECTING WILLS AND SUCCESSIONS. Although there is much in the modem European Law of Wills which is intimately connected with the oldest rules of Testamentary disposition practised among men, there are nevertheless some important differences between ancient and modem ideas on the subject of Wills and Successions. Some of the points of difference I shall endeavour to illustrate in this chapter. At a period, removed several centuries from the era of the Twelve Tables, we find a variety of rules en- grafted on the Roman Civil Law Mith the view of limiting the disinherison of children ; we have the ju- risdiction of the PraBtor very actively exerted in the same interest ; and we are also presented with a new remedy, very anomalous in character and of uncer- tain origin, called the Querela /fnofficiosi Testamenti, " the Plaint of an Unduteous Will," directed to the reinstatement of the issue in inheritances from which they had been unjustifiably excluded by a father's Testament. Comparing this condition of the law p 4 216 DISINHERISON OF CHILDREN. cbap. tii. with the text of the Twelve Tables which concedes in terms the utmost liberty of Testation, several writers have been tempted to interweave a good deal of dramatic incident into their history of the Law Testamentary. They teU us of the boundless license of disinherison in which the heads of families instantly began to indulge, of the scandal and injury to public morals which the new practices engendered, and of the applause of all good men which hailed the courage of the Praetor in arresting the progress of paternal depravity. This story, which is not without some foundation for the principal fact it relates, is often so told as to disclose very serious misconceptions of the principles of legal history, The Law of the Twelve Tables is to be explained by the character of the age in which it was enacted. It does not license a tendency which a later era thought itself bound to counteract, but it proceeds on the assumption that no such tendency exists, or, perhaps we should say, in ignorance of the possi- bility of its existence. There is no likelihood that Roman citizens began immediately to avail them- selves freely of the power to disinherit. It is against all reason and sound appreciation of history to suppose that the yoke of family bondage, still patiently submitted to, as we know, where its pres- sure galled most cruelly, would be cast off in the very particular in which its incidence in our own CHAP. TO. DISINHERISON OF CHILDREN. 217 day is not otherwise than welcome. The Law of the Twelve Tables permitted the execution of Testa- ments in the only case in which it was thought possible that they could be executed, viz. on failure of children and proximate kindred. It did not ] forbid the disinherison of direct descendants, inas- much as it did not legislate against a contingency which no Roman lawgiver of that era could have con- templated. No doubt, as the offices of family affec- tion progressively lost the aspect of primary personal duties, the disinherison of children was occasionally attempted. But the interference of the Praetor, so far from being called for by the universality of the abuse, was doubtless first prompted by the fact that such instances of unnatural caprice were few and exceptional, and at conflict with the current mo- rality. The indications furnished by this part of Roman Testamentary Law are of a very different kind. It is remarkable that a Will never seems to have been regarded by the Romans as a means of disinheriting a Family, or of effecting the unequal distribution of a patrimony. The rules of law preventing its being turned to such a purpose, increase in number and stringency as the jurisprudence unfolds itself; and these rules correspond doubtless with the abiding sentiment of Roman society, as distinguished from occasional variations of feeling in individuals. It \ 218 FEELING RESPECmNG INTESTACr. chap. vii. would rather seem as if the Testamentary Power were chiefly valued for the assistance it gave in making provision for a Family, and in dividing the inheritance more evenly and fairly than the Law of Intestate Succession would have divided it» K this he the true reading of the general sentiment on the point, it explains to some extent the singular horror of Intestacy which always characterised the Roman. No evil seems to have been considered a heavier visitation than the forfeiture of Testamentary pri- vileges ; no curse appears to have been bitterer than that which imprecated on an enemy that he might die without a Will. The feeling has no counterpart, or none than is easily recognisable, in the forms of opinion which exist at the present day. All men at all times wiU doubtless prefer chalking out the desti- nation of their substance to having that office per- formed for them by the law ; but the Roman passion for Testacy is distinguished from the mere desire to indulge caprice by its intensity; and it has of course nothing whatever in common with that pride of family, exclusively the creation of feudal- 1 ism, which accumulates one description of property ' in the hands of a single representative. It is pro- bable, h priori^ that it was something in the rules of Intestate Succession which caused this vehement pre- ference for the distribution of property under a Testa- ment over its distribution by law. The difficulty, CHAP. vii. ROMAN INTESTATE SUOCESSION. 219 however, is, that on glancing at the Roman law of In- testate Succession, in the form which it wore for many centuries before Justinian shaped it into that scheme of inheritance which has been almost uniyer- saUy adopted by modem lawgivers, it by no means strikes one as remarkably unreasonable or inequitable. On the contrary, the distribution it prescribes is so fair and rational, and differs so little fix>m that with which modem society has been generally contented, that no reason suggests itself why it should have been regarded with extraordinary distaste, especially under a jurisprudence which pared down to a narrow compass the testamentary privileges of per- sons who had children to provide for. We should rather have expected that, as in France at this mo- ment, the heads of families would generally save themselves the trouble of executing a WiU, and allow the Law to do as it pleased with their assets. I think, however, if we look a little closely at the pre- Justinianean scale of Intestate Succession, we shall discover the key to the mystery. The texture of the law consists of two distinct parts. One department of rules comes from the Jus Civile, the Common-Law of Rome ; the other from the Edict of the Praetor. The Civil Law, as I have already stated for another purpose, calls to the inheritance only three orders of successors in their turn ; the Unemancipated children, the nearest class of Agnatic kindred, and the Gentiles. / 220 ANCIENT INTESTATE SUCCESSION- chap. vii. Between these three orders, the Praetor interpolates various classes of relatives, of whom the Civil Law- took no notice whatever. Ul^g^atfily, the combination of the Edict and of the Civil Law forms a table of succession not materially different from that which has descended to the generality of modem codes. The point for recollection is that there must an- ciently have been a time at which the rules of the Civil Law determined the scheme of Intestate Suc- cession exclusively, and at which the arrangements of the Edict were non-existent, or not consistently carried out. We cannot doubt that, in its infancy, the Praetorian jurisprudence had to contend with ; formidable obstructions, and it is more than probable that, long after popular sentiment and legal opinion had acquiesced in it, the modifications which it periodically introduced were governed by no certain principles, and fluctuated with the varying bias of successive magistrates. The rules of Intestate Suc- cession, which the Romans must at this period have practised, account, I think — and more than account — for that vehement distaste for an Intestacy to which Roman society during so many ages remained constant. The order of succession was this : on the death of a citizen, having no will or no valid wiU, his Unemancipated children became his Heirs. His emancipated sons had no share in the inheritance. If he left no direct descendants living at his death. CHAP. VII. ANCIENT INTESTATE SUCCESSION. 221 the nearest grade of the Agnatic kindred succeeded, but no part of the inheritance was given to any rela- tive united (however closely) with the dead man through female descents. All the other branches of the family were excluded, and the inheritance es- cheated to the Gentiles^ or entire body of Roman citizens bearing the same name with the deceased. So that on failing, to execute an operative Testament, a Roman of the era under examination left his eman- cipated children absolutely without provision, while, on the assumption that he died childless, there was imminent risk that his possessions would escape from the family altogether, and devolve on a number of persons with whom he was merely connected by the sacerdotal fiction thai assumed all members of the same gens to be descended from a common ancestor. The prospect of such an issue is in itself a nearly sufficient explanation of the popular sentiment ; but, in point of fact, we shall only half understand it, if we forget that the state of things I have been de- scribing is likely to have existed at the very moment when Roman society was in the first stage of its transition from its primitive organisation in detached families. The empire of the father had indeed re- ceived one of the earliest blows directed at it through the recognition of Emancipation as a legitimate usage, but the law, still considering the Patria Potestas to be the root of family connection, perse- 1 ^j- •"*" A «'*♦. 222 PEELING KESPECTING INTESTACY, chaf. vii, yered in looking on the emancipated children as strangers to the rights of Kinship and aliens from the blood. We cannot, however, for a moment sup- pose that the limitations of the family imposed by legal pedantry hid their counterpart in the natural affection of parents. Family attachments must still have retained that nearly inconceivable sanctity and intensity which belonged to them under the Pa- triarchal system; and, so little are they likely to have been extinguished by the act of ^nancipation, that the probabilities are altogether the other way. It It may be unhesitatingly taken for granted that * enfranchisement from the father's power was a de- monstration, rather than a severance, of affection — a ft mark of grace and favour accorded to the best-beloved ijand most esteemed of the children. K sons thus honoured above the rest were absolutely deprived of their heritage by an Intestacy, the reluctance to in- cur it rcijuires no farther explanation.. We might have assumed h priori that the passion for Testacy was generated by some moral injustice entailed by the rules of Intestate succession ; and here we find them at variance with the very instinct by which early society was cemented together. It is possible to put all that has been urged in a very succinct form. Every dominant sentiment of the primitive Romans was entwined with the relations of the family. But what was the Fam^y ? The Law define d it o ne OHAP. vn. F££LING RESPECTING INTESTACT. 223 way — natoral aff ection a ^Q ^l ^^y. In the conflict be- /I tween tte two, the feeling we would analyse grew up, taking the form of an enthusiasm for the institution by which the dictates of affection were pennitted to determine the fortunes of its objects. I regard, therefore, the Roman horror of Lites- 1 1 tacy as a monument of a very early c onfli ct between \\ ^ ancient law and slowly changing ancient sentiment 111 on the subject of the Family. Some passages in the Roman Statute-Law, and one statute in parti- cular which limited the capacity for inheritance possessed by women, must have contributed to keep alive the feeling; and it is the general belief that the- system of creating Fidei-Commissa, or bequests in trust, was devised to evade the disabilities im<* posed by those statutes. But the feeling itself, in its remarkable intensity, seems to point back to some deeper antagonism between law and opinion; nor is it at all wonderful that the improvements of jurisprudence by the Prsetor should not have extin- guished it. Everybody conversant with the philo- | ] sophy of opinion is aware that a sentiment by no | ; means dies out, of necessity, with the passing away ' of the circumstances which produced it. It may long survive them; nay, it may afterwards attain ! to a pitch and climax of intensity which it never attained during their actual continuance. 1 The view of a Will which regards it as conferring % \ I ». t t ft \.' , » \. f 224 MODEBN WILLS. crap. th. the power of diverting property from the Family, \ or of distributing it in such uneven proportions 9a \ the fancy or good sense of the Testator may dictate, is not older than that later portion of the Middle Ages in which Feudalism had completely con- solidated itself. When modem jurisprudence first shows itself in the rough. Wills are rarely allowed to dispose with absolute freedom of a dead man's assets. Wherever at this period the descent of property was regulated by Will — and over the greater part of Europe moveable or personal property was the subject of Testamentary disposition — the exercise of the Testamentary power was seldom allowed to interfere with the right of the widow to a definite share, and of the children to certain fixed propor- tions, of the devolving inheritance. The shares of the children, as their amount shows, were deter- mined by the authority of Roman law. The pro- vision for the widow was attributable to the exer- tions of the Church, which never relaxed its solicitude for the interest of wives surviving their husbands — winning, perhaps, one of the most arduous of its tri- umphs when, after exacting for two or three centuries an express promise from the husband at marriage to endow his wife, it at length succeeded in engrafting \ the principle of Dower on the Customary Law of i \ all Western Europe. Curiously enough, the dower of lands proved a more stable institution than the CHAP. Til. widow's SHABE of moveables. 925 analogous and more ancient reservation of certain shares of the personal property to the Widow and children. A few local customs in France maintained the right down to the Revolution, and there are traces of similar usages in England ; but on the whole the doctrine prevailed that moveables might be freely disposed of by Will, and, even when the claims of the widow continued to be respected, the privi- leges of the children were obliterated from juris- prudence. We need not hesitate to attribute thei change to t he influen ce of Primogeniture. As the \ Feudal law of land practically disinherited all the children in favour of one, the equal distribution even 'I of those sorts of property which might have been ,i '^ equally divided ceased to be viewed as a duty. Tes- taments were the principal instruments employed in producing inequality, and in this condition of things originated the shade of difference which shows itself between the ancient and the modem con- ception of a Will. But, though the liberty of bequest, enjoyed through Testaments, was thus an accidental fruit of Feudalism, there is no broader distinction than that which exists between a system of free Testamentary disposition and a system, like that of the Feudal land-law, under which property descends compulsorily in prescribed lines of devolu- tion. This truth appears to have been lost sight of ' by the authors of the French Codes. In the social Q • 226 FRENCH LAW OP WILM. C&AP. Til. ^ 11 fabric which they determined to destroy, they saw Primogeniture resting chiefly on Family settle- ments, but they also perceived that Testaments were frequently employed to give the eldest son precisely the same preference which was reserved to him under the strictest of entails. In order, therefore, to make i^re of their work, they not only rendered it impossible to prefer the eldest son to the rest in marriage-arrangements, but they almost expelled Testamentary succession from the law, lest it should be used to defeat their funda- mental principle of an equal distribution of pro- perty among children at the parent's death. The result is that they have established a system of small perpetual entails, which is infinitely nearer akin to the system of feudal Europe than would be a perfect liberty of bequest. The land-law of Eng- land, "the Herculaneum of Feudalism," is certainly much more closely allied to the land-law of the Middle Ages than that of any Continental country, and Wills with us are frequently used to aid or imitate that preference of the eldest son and his line which is a nearly universal feature in marriage settlements of real property. But nevertheless feeling and opinion in this country have been profoundly affected by the practice of free Testamentary disposition ; and it appears to me that the state of sentiment in a great part of French society, on the subject of the CHAP. vn. PSIMOGENITUBE. 387 conservation of property in families, is much liker that which prevailed through Europe two or three centuries ago than are the current opinions of Eng- lishmen. The mention of Primogeniture introduces one of the most difficult problems of historical jurispru- dence. Though I have not paused to explain my expressions, it may have been noticed that I have frequently spoken of a number of " co-heirs " as placed by the Roman Law of Succession on the same footing with a single Heir. In point of fact, we know of no period of Roman jurisprudence at which the place of the Heir, or Universal Succes- sor, might not have been taken by a group of co- heirs. This group succeeded as a single unit, and the assets were afterwards divided among them in a separate legal proceeding. When the Succession was oi intestato^ and the group consisted of the children oi tne deceased, they each took an equal share of the property; nor, though males had at one time some advantages over females, is there the faintest trace of Primogeniture. The mode of distribution is the same throughout archaic jurisprudence. It certainly seems that, when civil society begins and families cease to hold together through a series of generations, the idea which spontaneously suggests itself is to divide the domain equaUy among the mem- bers of each successive generation, and to reserve no q2 .* ^ •^ . / . 1. If >^ 228 PBIMOGENITUSE. CHAP. YII. privilege to the eldest son or stock. Some pecu- liarly significant hints as to the close relation of this phenomenon to primitive thought are furnished by systems yet more archaic than the Roman. Among the Hindoos, the instant a son is bom, he acquires a vested right in his father's property, which cannot be sold without recognition of his joint ownership. On the son's attaining full age, he can sometimes compel a partition of the estate even against the consent of the parent; and, should the parent ac- quiesce, one son can always have a partition even against the will of the others. On such partition taking place, the father has no advantage over his children, except that he has two of the shares in- stead of one. The ancient law of the German tribes was exceedingly similar. The aUdd or domain \ of the family was the joint-property of the father ) and his sons. It does not, however, appear to have been habitually divided even at the death of the parent, and in the same way the possessions of a Hindoo, however divisible theoretically, are so rarely distributed in fact, that many generations constantly succeed each other without a partition taking place, and thus the Family in India has a perpetual tendency to expand into the Village Community, under condi- tions which I shall hereafter attempt to elucidate. All this points very clearly to the absolutely equal division of assets among the male children at death as CHAP. ni. PmMOGENITUBB. 229 the practice most usual with society at the period ly hen fa. Tni]y>r1fipp,p^f{^ P^Y Ja jxi th ^ ^rat atflgpfli # flifl- integratio n. Here then emerges the historical diffi- culty of Primogeniture* The more clearly we perceive that, when the Feudal institutions were in process of formation, there was no source in the world whence they could derive their elements but the Roman law of the provincials on the one hand and the archaic customs of the barbarians on the other, the more are we perplexed at first sight by our knowledge that neither Roman nor barbarian was accustomed to give any preference to the eldest son or his line in the succession to property. Primogeniture did not belong to the Customs which the barbarians practised on their first establishment within the Roman Empire. It is known to have had its origin in the h^mp.f i/* ^^ or beneficiary gifts of the • invading chieftains. These benefices, which were\ occasionally conferred by the earlier immigrant kings, but were distributed on a great scale by Charlemagne, were grants of Roman provincial land to be holden // by the beneficiary on condition of military service. I{ The allodial proprietors do not seem to have followed their sovereign on distant or difficult enterprises, and aU the grander expeditions of the Frankish chiefs and of Charlemagne were accomplished with forces com- posed of soldiers either personally dependent on the royal house or compelled to serve it by the tenure of a3 ''\^ 330 BENEFICES AND FIEFS. chap. yii. their land. The benefices, however^ were not at first in any sense hereditary . They were held at the pleasure of the grantor, or at most for the life of the grantee ; bat still, from the very outset, no effort seems to have been spared by the' bene- ficiaries to enlarge the tenure, and to continue their lands in their family after death. Through the feebleness of Charlemagne's successors these attempts were universally successibl, and the Benefic e gradu- ally transformed itself into the hereditary Fief. But, jf though theliefs were hereditary, ikey did not neces- ; sarily^HesceiKrto tHe eldest son. The rules of suc- l cession which they foUowed were entirely determined by the terms agreed upon between the grantor and the beneficiary, or imposed by one of them on the weakness of the other. The original tenures were therefore extremely various ; not indeed so capriciously various as is sometimes asserted, for all. which have hitherto been described present some combination of the modes of succession famiUar to Romans and to barbarians, but still exceedingly mis- ceUaneous« In some of them, the eldest son and his stock undoubtedly succeeded to the fief before the others, but such successions, so far from being uni- versal, do not even appear to have been general. Precisely the same phenomena recur during that more recent transmutation of European society which entirely substituted the feudal form of property for CHAP. VII. ALLODS AND FIEFS. 231 -the domainial (or Koman) and the allodial (or Ger- man). The allods were wholly absorbed by the fiels. The greater allodial proprietors transformed them- selves into feudal lords by conditional alienations of portions of their land to dependants; the smaller ,. sought an escape from the oppressions of that terrible I time by surrendering their property to some powerful | chieftain, and receiving it back at his hands on con- dition of service in his wars. Meantime, that vast mass of the population of Western Europe whose condition was servile or semi-servile — the Roman and German personal slaves, the Roman coloni and the German lidi — were concurrently absorbed by the feudal organisation, a few of them assuming a menial relation to the lords, but the greater part receiving land on terms which in those centuries were considered degrading. The tenures created during this era of universal infeudation were as vari- ous as the conditions which the tenants made with their new chiefs or were forced to accept from them. As in the case of the benefices, the succession to some, but by no means to all, of the estates followed the rule of Primogeniture. No sooner, however, has the feudal system prevailed throughout the West, than it becomes evident that Primogeniture has some great advantage over every other mode of succession. It spread over Europe with remarkable rapidity, the i principal instrument of diffusion being Family Settle- ' Q 4 232 DIFFUSION OF PEIMOGENITURB. chap. vii. ments, the Pactes de Famille of France and Haus- Gesetze of Germany, which universally stipulated that lands held by knightly service should descend to the eldest son. Ultimately the law resigned itself to follow inveterate practice, and we find that in all the bodies of Customary Law, which were gradually built up, the eldest son and stock are preferred in the succession to estates of which the tenure is free and military. As to lands held by servile tenures (and originally aU tenures were servile which bound the tenant to pay money or bestow manual labour), the ^ system of succession prescribed by custom differed • c- greatly in different countries and different provinces. ^ . The more general rule was that such lands were ^ divided equally at death among all the children, but still in some instances the eldest son was preferred, in some the youngest. But Primogeniture usually governed the inheritance of that class of estates, in some respects the most important of all, which were held by tenures that, like the Eng lish Socage , were of later origin than the rest, "ah3 were neither alto- gether free nor 'altogether servile. The diffusion of Primogeniture is usually accounted for by assigning what are called Feudal reasons for it. It is asserted that the feudal superior had a bet- ter security for the military service he required when the fief descended to a single person, instead of being distributed among a number on the decease of the r \ ■ CHAP. vu. DIFFUSION OF PRIMOGENITURE, 283 last holder. Without denying that this consideration may partially explain the favour gradually acquired by Primogeniture, I must point out that Primogeni- ture became a custom of Europe much more through its popularity with the tenants than through any ad- vantage it conferred on the lords. For its origin, moreover, the reason given does not account at all. Nothing in law springs entirely from a sense of co n- venience. There are always certain ideas existing antecedently on which the sense of convenience works, and of which it can do no more than form some new* combination ; and to find these ideas in the present case is exactly the problem. A valuable hint is furnished to us from a quarter fruitful of such indications. Although in India the possessions of a parent are divisible at his death, and may be divisible during his life, among all his male children in equal shares, and though this principle of the equal distribution of property extends to every part of the Hindoo institutions, yet wherever public office or political power devolves at the decease of the I t last Incumbent, the succession is nearly universally according to the rules of Primogeniture. Sovereign- ties descend therefore to the eldest son, and where the affairs of the Village Community, the corporate unit of Hindoo society, are confided to a single manager, it is generally the eldest son who takes up the administration at his parent's death. All offices, I 284 SUCCESSION TO POLITICAL POWER. cbaf. yu. indeed, in India, tend to become hereditary, and, when their nature permits it, to vest in the eldest member of the oldest stock. Comparing these Indian succes- sicms with some of the ruder social organisations which have survived in Europe almost to our own day, the conclusion suggests itself that, v^en Patri* archaIjpower.,is;not only domesUe but poUticcd^ it is not distributed among all the issue at the parent's death, but is the birthright of the eldest son. The ) chieftainship of a Highland clan, for example, followed 'the order of Primogeniture. There seems, in truth, to be a form of family-dependency still more archaic than any of those which we know £tx)m the primitive records of organised civil societies. The Agnatic Union of the kindred in ancient Roman law, and a multitude of sunilar indications, point to a period at which all the ramifying branches of the family tree held together in one organic whole ; and it is no pre- sumptuous conjecture, that, when the corporation thus formed by the kindred was in itself an independent society, it was governed by the eldest male of the oldest line. It is true that we have no actual know- ledge of any such society. Even in the most ele- mentary communities, family-organisations, as we know them, are at most imperia in imperio. But the position of some of them, of the Celtic clans in parti- cular, was sufficiently near independence within his- torical times to force on us the conviction that they CHAP. TH. ANCIENT FOBHS OF PIUMOGENITURE. 295 were once separate imperic^ and that Primogenitare regulated the succession to the chieftainship^ It is, however, necessary to be on our guard against modem associations with the term of law. We are speaking of a family-connection still closer and more stringent than any with which we are made acquainted by Hindoo society or ancient Roman law. If the Koman Paterfamilias was visibly steward of the fa- mily possessions, if the Hindoo father is only joint- isAiarer with his sons, still more emphatically must the true patriarchal chieftain be merely the administrator of a common fund. The examples of succession by Primogeniture which were foimd among the Benefices may, therefore, have been imitated from a system of family-govern- ment known to the invading races, though not in general use. Some ruder tribes may have still practised it, or, what is still more probable, society may have been so slightly removed from its more archaic concGtion that the minds of some men spon- taneously recurred to it, when they were called upon to settle the rules of inheritance for a new form of property. But there is still the question. Why did Primogeniture gradually supersede every other prin- ciple of succession ? The answer, I think, is, that European society decidedly retrograded during the dissolution of the Carlovingiaa empire. It sank a point or two back even from the miserably low degree ' 236 FALL OP CAKLOVINGLAN EMPIKB. CHAP. vn. which it had marked during the early barbarian monarchies. The great characteristic of the period was the feebleness, or rather the abeyance, of kingly and therefore of civil authority ; and hence it seems as if, civil society no longer cohering, men imiver- sally flung themselves back on a social organisation older than the beginnings of civil commimities* The lord with his vassals, during the ninth and tenth centuries, may be considered as a patriarchal house- hold, recruited, not as in the primitive times by Adop- tion, but by Infeudation ; and to such a confederacy, succession by Primogeniture was a source of strength and durability. So long as the land was kept together on which the entire organisation rested, it was power- ful for defence and attack ; to divide the land was to divide the littie society, and voluntarily to invite aggression in an era of universal violence. We may be perfectly certain that into this preference for Primogeniture there entered no idea of disinheriting the bulk of the children in favour of one. Everybody would have suffered by the division of the fief. Everybody was a gainer by its consolidation. The Family grew stronger by the concentration of power in the same hands ; nor is it likely that the lord who was invested with the inheritance had any advantage over his brethren and kinsfolk in occupations, inte- rests, or indulgences. It would be a singular ana- chronism to estimate the privileges succeeded to by "S! CHAP. Til. EABUBB AND LATEB PBIMOGENITUBS. 237 the heir of a fief, by the situation in which the eldest I son is placed under an English strict settlement. I have said that I regard the early feudal con- federacies as descended from an archaic form of the i /^ Family, and as wearing a strong resemblance to it. !: *^ * ^ But then in the ancient world, and in the societies ' * which have not passed through the crucible of feu- dalism, the Primogeniture which seems to have pre- vailed never transformed itself into the Primogeniture of the later feudal Europe. When the group of kins- men ceased to be governed through a series of genera- tions by a hereditary chief, the domain which had . been managed for all appears to have been equally divided among all. Why did this not occur in the feudal world ? If during the confusions of the first feudal period the eldest son held the land for the be- ^ j^Qof o f the whole family, why was it that when feudal Europe had consolidated itself, and regular commu- nities were again established, the whole family did not resume that capacity for equal inheritance which had belonged to Roman and German alike ? The key which unlocks this difficulty has rarely been seized by the writers who occupy themselves in tracing the genealogy of Feudalism. They perceive the materials of the feudal institutions, but they miss the cement. The ideas and social forms which contributed to the formation of the system were unquestionably bar- barian and archaic, but, as soon as Courts and lawyers 238 MOBSBV YIETf QF CmEFTAIlirSHIP. chap. vn. were called in to iiiterpret and define it^ the principles of interpretation which they applied to it were those of the latest Roman jurisprudence, and were therefore excessively refined and matured. In a patriarchally governed society, the eldest son may succeed to the government of the Agnatic group, and to the absolute disposal of its property. But he is not therefore a true proprietor. He has correlative duties not in- volved in the conception of proprietorship, but quite undefined and quite incapable of definition. The later Roman jurisprudence, however, like our own law, looked upon uncontrolled power over property as equivalent to ownership, and did not, and, in fact, could hot, "'take'" notlcel)f liabilities of such a kind, that the very conception of them belonged to a period 'anterior to regular law. The contact of the refined and the barbarous notion had inevitably for its effect the conversion of the eldest son into legal proprietor of the inheritance. The clerical and secular lawyers so defined his position from the first ; but it was only by insensible degrees that the younger brother, from participating on equal terms in all the dangers and enjoyments of his kinsman, sank into the priest, the soldier of fortune, or the hanger-on of the mansion. The legal revolution was identical with that which occurred on a smaller scale, and in quite recent times, through the greater part of the Highlands of Scotland. When called in to determine the legal powers of the CHAP. yXL FORMS OF PBIMOOENITUBE. 280 chieftain over the domains which gave sustenance to the clan, Scottish jurisprudence had long since passed the point at which it could take notice of the vague limitations on completeness of dominion imposed by the claims of the clansmen, and it was inevitable therefore that it should convert the patrimony of many into the estate of one. For the sake of simplicity I have called the mode of succession Primogeniture whenever a single son or descendant succeeds to the authority over a house- hold or society. It is remarkable, however, that in the few very ancient examples which remain to us of this sort of succession, it is not always the eldest son, in the sense familiar to us, who takes up the repre- sentation. The form of Primogeniture which has spread over Western Europe has also been per- petuated among the Hindoos, and there is every reason to believe that it is the normal form. Under it, not only the eldest son, but the eldest line is always preferred. If the eldest son fails, his eldest son has precedence not only over brothers but over uncles ; and, if he too fails, the same rule is followed in the next generation. But when the succession is not merely to civil but to political power, a difficulty may present itself which will appear of greater magnitude according as the cohesion of society is less perfect. The chieftain who last exercised authority may have outlived his eldest son, and the grandson who is \ 240 FORMS OF PBIMOGENITUBE. chap. m. primarily entitled to succeed may be too young and immature to undertake the actual guidance of the community, and the administration of its affairs. In such an event, the expedient which suggests itself to the more settled societies is to place the infant heir under guardianship till he reaches the age of ^tness * for government. The guardianship is generally that of the male Agnates ; but it is remarkable that the contingency supposed is one of the rare cases in which ancient societies have consented to the exercise of power by women, doubtless out of respect to the overshadowing claims of the mother. In India, the widow of a Hindoo sovereign governs in the name of her infant son, and we cannot but remember that the custom regulating succession to the throne of France — which, whatever be its origin, is doubtless of the highest antiquity — preferred the queen-mother to all other claimants for the Regency, at the same time that it rigorously excluded all females from the throne. There is, however, another mode of ob- viating the inconvenience attending the devolution of sovereignty on an infant heir, and it is one which would doubtless occur spontaneously to rudely or- ganised communities. This is to set aside the infant heir altogether, and confer the chieftainship on the eldest surviving male of the first generation. The Celtic clan-associations, among the many phenomena which they have preserved of an age in which civil CHAP. VII. CELTIC PRIMOGENITURE. 241 9. and political society were no t yet e ven rudimentarily separ^ej? l^ave brought down this rule of succession to historical times. With them, it seems to have existed in the form of a positive canon, that, failing the eldest son, his next brother succeeds in priority to all grandsons, whatever be their age at the moment when the sovereignty devolves. Some writers have explained the principle by assuming that the Celtic customs took the last chieftain as a sort of root or stock, and then gave the succession to the descend- ant who should be least remote from him ; the imcle thus being preferred to the grandson as being nearer to the common root. No objection can be taken to this statement if it be merely intended as a descrip- tion of the system of succession ; but it would be a serious error to conceive the men who first adopted the rule as applying a course of reasoning which evidently dates from the time when feudal schemes of succession begun to be debated among lawyers. The true origin of the preference of the uncle to the grandson is doubtless a simple calculation on the part of rude men in a rude society that it is better to be governed by a grown chieftain than by a child, and that the younger son is more likely to have come to maturity than any of the eldest son's descendants. At the same time, we have some evidence that the form of Primogeniture with which we are best acquainted is the primary form, in the tradition that S42 MAHOMETAN RULE. cuAr. yit. the assent of the clan was asked when an infant heir was passed over in favour of his uncle. There is a tolerably well authenticated instance of this ceremony in the annals of the Macdonalds. Under Mahometan law, which has probably pre- served an ancient Arabian custom, inheritances of property are divided equally among sons, the daugh- ters taking a half share ; but if any of the children die before the division of the inheritance, leaving issue behind, these grandchildren are entirely ex- cluded by their uncles and aunts. Consistently with this principle, the succession, when political autho- rity devolves, is according to the form of Primo- geniture which appears to have obtained among the Celtic societies. In the two great Mahometan families of the West, the rule is believed to be, that the uncle succeeds to the throne in preference to the nephew, though the latter be the son of an elder brother; but though this rule has been followed quite recently in Egypt, I am informed that there is some doubt as to its governing the devolution of the Turkish sovereignty. The policy of the Sultans has in fact hitherto prevented cases for its applica- tion from occurring, and it is possible that their wholesale massacres of their younger brothers may have been perpetrated quite as much in the interest of their children as for the sake of making away with dangerous competitors for the throne. It is CUAT, VII. POLYGAMY, 443 evident, however, that in polygamous stKUOtios the form of Primogeniture will always tend to vary, ^lany considerations may constitute a claim on the succession, the rank of the mother, for oxiunplo, or her degree in the affections of the father. Aooonl- ingly, some of the Indian Mahometxui sovoreigi^s, without pretending to any distinct testamentary power, claim the right of nominating the son who is to succeed. The blessing mentioned in the Scriptural history of Isaac and his sons has some- times been spoken of as a will, but it scorns rather to have been a mode of naming an eldest son. It 2 244 NATURAL MODES OP ACQUISITION. chap. viii. CHAP. VIII. THE EARLY HISTORY OF PROPERTY. The Roman Institutional Treatises, after giving their definition of the various forms and modifications of ownership, proceed to discuss the Natural Modes of Acquiring Property. Those who are unfamiliar with the history of jurisprudence are not likely to look upon these "natural modes" of acquisition as pos- sessing, at first sight, either much speculative or much practical interest. The wild animal which is snared or killed by the hunter, the soil which is added to our field by the imperceptible deposits of a river, the tree which strikes its roots into our ground, are each said by the Roman lawyers to be acquired by us naturally. The older jurisconsults had doubt- less observed that such acquisitions were universally sanctioned by the usages of the little societies around them, and thus the lawyers of a later age, finding them classed in the ancient Jus Gentium, and per- ceiving them to be of the simplest description, allotted them a place among the ordinances of Nature. The dignity with which they were invested has gone on increasing in modem times till it is quite out of pro- M . mm. -j.ij ■ 9-^ iL ^ ■»'«.- CHAP. Yin. OCCUPANCY. 245 portion to their original importance. Theory has made them its favourite food, and has enabled them to exercise the most serious influence on practice. It will be necessary for us to attend to one only among these " natural modes of acquisition," Occu* patio or Occupancy. Occupancy is the advisedly taking possession of that which at the moment is the property of no man, with the view (adds the technical definition) of acquiring property in it for yourself. The objects which the Roman lawyers called res ntU- lius — things which have not or have never had an owner — can only be ascertained by enumerating them. Among things which never had an owner are wild animals, fishes, wild fowl, jewels disinterred for the first time, and lands newly discovered or never before cultivated. Among things which have not an owner are moveables which have been abandoned, lands which have been deserted, and (an anomalous but most formidable item) the property of an enemy. In all these objects the full rights of dominion were acquired by the Occupant^ who first took possession of them with the intention of keeping them as his own — an intention which, in certain cases, had to be manifested by specific acts. It is not difficult, I think, to understand the universality which caused the practice of Occupancy to be placed by one gene- ration of Roman lawyers in the Law common to all Nations, and the simplicity which occasioned its being B 3 246 LAW OP CAPTURE IN WAB. chap. viii. attributed by another to the Law of Nature. But for its fortunes in modem legal history we are less prepared by h priori considerations. The Roman principle of Occupancy, and the rules into which the jurisconsults expanded it, are the source of all modern International Law on the subject of Capture in War and of the acquisition of sovereign rights in newly dis- covered countries. They have also supplied a theory of the Origin of Property, which is at once the popular theory, and the theory which, in one form or another, is acquiesced in by the great majority of speculative jurists. I have said that the Roman principle of Occupancy has determined the tenor of that chapter of Interna- tional Law which is concerned with Capture in War. The Law of Warlike Capture derives its rules from the assumption that communities are remitted t o.ji state of nature by the outbreak of hostilities, and that, in the artificial natural condition thus produced, the institution of private property falls into abeyance so far as concerns the belligerents. As the later writers on the Law of Nature have always been anxious to maintain that private property was in some sense sanctioned by the system which they were expound- ing, the hypothesis that an enemy's property is res nvlHus has seemed to them perverse and shocking, and they are careful to stigmatise it as a mere fiction of jurisprudence. But, as soon as the Law of Nature CHAP. VIII. ANCIENT LAW OP CAPTURE. 247 is traced to its source in the Jus Gentium, we see at once how the goods of an enemy came to be looked upon as nobody's property, and therefore as capable of being acquired by the first occupant. The idea would occur spontaneously to persons practising the ancient forms of Warfare, when victory dissolved the organisation of the conquering army and dismissed the soldiers to indiscriminate plunder. It is probable, however, that originally it was only moveable pro- perty which was thus permitted to be acquired by the Captor. We know on independent authority that a very diflferent rule prevailed in ancient Italy as to the acquisition of ownership in the soil of a con- quered country, and we may therefore suspect that the application of the principle of occupancy to land (always a matter of difficulty) dates from the period when the Jus Gentium was becoming the Code of Nature, and that it is the result of a generalisation eflTected by the jurisconsults of the golden age. Their dogmas on the point are preserved in the Pandects of Justinian, and amount to an unqualified assertion that enemy's property of every sort is res mdlius to the other belligerent, and that Occupancy, by which the Captor makes them his own, is an institution of N atural Law. The rules which International juris- prudence derives from these positions have sometimes been stigmatised as needlessly indulgent to the fero- city and cupidity of combatants, but the charge has B 4 1^ u4 ■' 248 OCCUPANCY AND WAKLIKE CAPTURE. chap. viii. been made, I think, by persons who are unacquainted with the history of wars, and who are consequently ignorant how great an exploit it is to command obedience for a rule of any kind. The Roman prin- ciple of Occupancy, when it was admitted into the modem law of Capture in War, drew with it a number of subordinate canons, limiting and giving precision to its operation, and if the contests which have been waged since the treatise of Grotius became an authority, are compared with those of an earlier date, it will be seen that, as soon as the Roman maxims were received. Warfare instantly assumed a more tolerable complexion. If the Roman law of Occu- pancy is to be taxed with having had pernicious in- fluence on any part of the modem Law of Nations, there is another chapter in it which may be said, with some reason, to have been injuriously affected. In applying to the discovery of new countries the same principles which the Romans had applied to the find- ing of a jewel, the Publicists forced into their service a doctrine altogether unequal to the task expected from it. Elevated into extreme importance by the discoveries of the great navigators of the 15th and 16th centuries, it raised more disputes than it solved. The greatest uncertainty was very shortly found to exist on the very two points on which certainty was most required, the extent of the territory which was acquired for his sovereign by the discoverer, and the CHAP, viii. RULE OP DISCOVEKT. 249 nature of the acts which were necessary to complete I fi^ the adprenensio or assumption of sovereign posses- sion. Moreover, the principle itself, conferring as it did such enormous advantages as the consequence of a piece of good luck, was instinctively mutinied against by some of the most adventurous nations in Europe, the Dutch, the English, and the Portu- guese, Our own countrymen, without expressly denying the rule of International Law, never did, in practice, admit the claim of the Spaniards to engross the whole of America south of the Gulf of Mexico, or that of the King of France to monopolise the valleys of the Ohio and the Mississippi. From the accession of Elizabeth to the accession of Charles the Second, it cannot be said that there was at any time thorough peace in the American waters, and the encroach- ments of the New England Colonists on the territory of the French King continued for almost a century longer, Bentham was so struck with the confusion attending the application of the legal principle, that he went out of his way to eulogise the famous Bull of Pope Alexander the Sixth, dividing the undis- covered countries of the world between the Spaniards and Portuguese by a line drawn one hundred leagues West of the Azores ; and, grotesque as his praises may appear at first sight, it may be doubted whether the / arrangement of Pope Alexander is absurder in prin- . ciple than the rule of Public law, which gave half a t !, J, 250 ORIGIN OP PROPERTY. chap. vui. continent to the monarch whose servants had fulfilled the conditions required by Roman jurisprudence for the acquisition of property in avs^luable object which could be covered by the hand. To all who pursue the inquiries which are the subject of this volume Occupancy is pre-eminently interesting on the score of the service it has been made to perform for speculative jurisprudence, in furnishing a supposed explanation of the origin of private property. It was once universally believed that the proceeding implied in Occupancy was iden- tical with the process by which the earth and its fruits, which were at first in common, became the allowed property of individuals. The course of thought which led to this assumption is not diflicult to understand, if we seize the shade of difference which separates the ancient from the modern con- f h ception of Natural Law. The Roman lawyers had laid down that Occupancy was one of the Natural modes of acquiring property, and they undoubtedly believed that, were mankind living under the institu- tions of Nature, Occupancy would be one of their practices. How far they persuaded themselves that such a condition of the race had ever existed, is a point, as I have already stated, which their language leaves in much uncertainty; but they certainly do seem to have made the conjecture, which has at all times possessed much plausibility, that the institution CHAP. VIII. OEIGIN OP PROPERTY. 251 of property was not so old as the existence of man- kind. Modern jurisprudence, accepting all their C^-) dogmas without reservation, went far beyond them in the eager curiosity with which it dwelt on the supposed state of Nature. Since then it had re- ceived the position that the earth and its fruits wer0 once res nvllius^ and since its peculiar view of Na- ture led it to assume without hesitation that the human race had actually practised the Occupancy of res ntdlius long before the organisation of civil so- cieties, the inference immediately suggested itself that Occupancy was the process by which the " no man's goods" of the primitive world became the private property of individuals in the world of history. It would be wearisome to enumerate the jurists who have subscribed to this theory in one shape or an- other, and it is the less necessary to attempt it because Blackstone, who is always a faithful index of the average opinions of his day, has summed them up in his 2nd book and 1st chapter. " The earth," he writes, " and all things therein were the general property of mankind from the imme- diate gift of the Creator. Not that the communion of goods seems ever to have been applicable, even in the earliest ages, to aught but the substance of the thing ; nor could be extended to the use of it. For, by the law of nature and reason he who first began to use it acquired therein a kind of transient property that / 252 BLACKSTONE'S THEORY. chap. viii. lasted so long as he was using it, and no longer; or to speak with greater precision, the right of pos- session continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust and contrary to the law of nature to have driven him by force, but the instant that he quitted the use of occupation of it, another might seize it without injustice." He then proceeds to argue that " when mankind increased in number, it became necessary to entertain conceptions of more permanent domi- nion, and to appropriate to individuals not the imme- diate use only, but the very substance of the thing to be used." Some ambiguities of expression in this passage lead to the suspicion that Blackstone did not quite understand the meaning of the proposition which he found in his authorities, that property in the earth's surface was first acquired, under the law of Nature, by the occupant ; but the limitation which designedly or through misapprehension he has imposed on the theory brings it into a form which it has not infrequently assumed. Many writers more famous than Blackstone for precision of language CHAP. VIII. BLACKSTONE'S theory. 253 have laid down that, in the beginning of things, OcgUDgicj^rgt gave a right against the world to an exclusive but temporary enioyment, and that after- wards this right, while it remained exclusive, became perpetual. Their object in so stating their theory was to reconcile the doctrine that in the state of Nature res nullius became property through Occu- pancy, with the inference which they drew from the Scriptural history that the Patriarchs did not at first permanently appropriate the soil which had been grazed over by their flocks and herds. The only criticism which could be directly applied to the theory of Blackstone would consist in in- quiring whether the circumstances which make up his picture of a primitive society are more or less probable than other incidents which could be ima- gined with equal readiness. Pursuing this method of examination, we might fairly ask whether the man who had occupied (Blackstone evidently uses this word with its ordinary English meaning) a par- ticular spot of ground for rest or shade would be permitted to retain it without disturbance. The chances surely are that his right to possession would be exactly coextensive with his power to keep it, j and that he would be constantly liable to disturbance by the first comer who coveted the spot and thought himself strong enough to drive away the possessor. But the truth is that all such cavil at these positions 254 APHORISM OF SAVIQXY. chap. viii. is perfectly idle from the very baselessness of the positions themselves. What mankind did in the pri- mitive state may not be a hopeless subject of inquiry, but of their motives for doing it it is impossible to know anything. These sketches of the plight of human beings in the first ages of the world are effected by first supposing mankind to be divested of a great part of the circumstances by which they are now surrounded, and by then assuming that, in the condition thus imagined, they would preserve the same sentiments and prejudices by which they are now actuated, — although, in fact, these senti- ments may have been created and engendered by those very circumstances of which, by the hypo- thesis, they are to be stripped. There is an aphorism of Savigny which has been sometimes thought to countenance a view of the origin of property somewhat similar to the theories epitomised by Blackstone. The great German jurist has laid do^vn that all Property is founded on Ad- . ' verse Possession ripened by Prescription. It is"only ^ with respect to Roman law that Savigny makes this statement, and before it can fully be appreciated much labour must be expended in explaining and defining the expressions employed. His meaning will, however, be indicated with sufficient accuracy if we consider him to assert that, how far soever we carry our inquiry into the ideas of property received CHAP. viif. APHORISM OP SAVIGNY. 255 among the Romans, however closely we approach in tracing them to the infancy of law, we can get no farther than a conception of ownership involving the three elements in the canon — Possession, Adverse- ness of Possession, that is a holding not permissive or subordinate, but exclusive against the world, and Prescription, or a period of time during which the Adverse Possession has uninterruptedly continued. It is exceedingly probable that this maxim might be enunciated with more generality than was allowed to it by its author, and that no sound or safe con* elusion can be looked for from investigations into any system of laws .which are pushed farther back than the point at which these combined ideas con- stitute the notion of proprietary right. Meantime, so far from bearing out the popular theory of the origin of property, Savigny's canon is particularly valuable as directing our attention to its weakest point. In the view of Blackstone and those whom he follows, it was the mode of assuming the exclusive enjoyment which mysteriously affected the minds of the fathers of our race. But the mystery does not re- side here. It is not wonderful that property began in adverse possession. It is not surprising that the first proprietor should have been the strong man armed who kept his goods in peace. But why it was that lapse of time created a sentiment of respect for his possession — which is the exact source of the 256 TRUE ORIGIN OP OCCUPANCY. chap. viii. universal reverence of mankind for that which has for a long period de facto existed— are questions really deserving the profoundest examination, but lying far beyond the boundary of our present inquiries. Before pointing out the quarter in which we may hope to glean some information, scanty and un- certain at best, concerning the early history of proprietary right, I venture to state my opinion that the popular impression in refeVence to the part played by Occupancy in the first stages of civilisa- i tion directly reverses the truth. Qccupaticy is the advised assumption of ph ysical possessi on ; and the notion that an act of tms description confers a title to " res nuUius," so far from being characteristic of very early societies, is in all probability the growth of a refined jurisprudence and of a settled condition of the laws. It is only when the rights of property have gained a sanction from long prac- tical inviolability, and when the vast majority of the objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship -liil^ been asserted. The sentiment in which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty of proprietary rights which distinguish the beginnings of civilisation. Its true basis seems to be, not an instinctive bias CHAP. VIII. OBJECTIONS TO POPULAR THEORY. 257 towards the institution of Property, but a presump- tion, arising out of the long continuance of that institution, that everything ought to have an owner. When possession is taken of a " res nullius," that is, of an object which is not, or has never been, reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally the subjects of an exclusive enjoyment, and that in the given case there is no one to invest with the right of property except the Occupant. The Occupant in short, becomes the owner, because all things are presumed to be somebody's property and because no one can be pointed out as having a better right than he to the proprietorship of this particular thing. Even were there no other objection to the de- scriptions of mankind in their natural state which we have been discussing, there is one particular in which they are fatally at variance with the authentic evidence possessed by us. It will be observed, that the acts and motives which these theories suppose are the acts and motives of Individuals. It is each Individual who for himself subscribes the Social Compact. It is some shifting sandbank in which the grains are Individual men, that according to the theory of Hobbes is hardened into the social rock by the wholesome discipline of force. It is an Individual who, in the picture drawn by Black- s 1 I 258 OBJECTIONS TO POPULAB THEORY. chap. viii. stone, " is in the occupation of a determined spot of ground for rest, for shade, or the like." The vice is one which necessarily afflicts all the theories de- scended from the Natural Law of the Romans, which differed principally from their Civil Law in the account which it took of Individuals, and which has rendered precisely its greatest service to civilisa- tion in enfranchising the individual from the autho- rity of archaic society. But Ancient Law, it must (again be repeated, knows next to nothing of In- dividuals. It is concerned not with Individuals, but , with Families, not with single human beings, but groups. Even when the law of the State has suc- ceeded in permeating the small circles of kindred into which it had originally no means of penetrating, the view it takes of Individuals is curiously different from that taken by jurisprudence in its maturest stage. The life of each citizen is not regarded as limited by birth and death ; it is but a continuation of the existence of his forefathers, and it will be prolonged in the existence of his descendants. The Roman distinction between the Law of Per- sons and the Law of Things, which though extremely convenient is entirely artificial, has evidently done much to divert inquiry on the subject before us from the true direction. The lessons learned in discussing the Jus Personarum have been forgotten where the Jus Rerum is reached, and Property, Contract, and Delict, have been considered as if no hints concern- CHAjr. viii. INFLUENCE OF ROMAN CLASSIFICATIONS. 259 ing their original nature were to be gained from the facts ascertained respecting the original condition of Persons. The futility of this method would be manifest if a system of pure archaic law could be brought before us, and if the experiment could be tried of applying to it the Roman classifications. It would soon be seen that the separation of the Law of Persons from that of Things has no meaning in the infancy of law, that the rules belonging to the two departments are inextricably mingled to- gether, and that the distinctions of the later jurists are appropriate only to the later jurisprudence. From what has been said in the earlier portions of this treatise, it will be gathered that there is a strong & priori improbability of our obtaining any clue to the early history of property, if we confine our notice to the proprietary rights of in- dividuals. It is more than likely that joint-own( ship, and not separate ownership, is the really archaic institution, and that the forms of property which will afford us instruction will be those which are associated with the rights of families and of groups of kindred. The Roman jurisprudence will not here assist in enlightening us, for it is exactly the Roman jurisprudence which, transformed by the theory of Natural Law, has bequeathed to the moderns the impression that individual ownership is the normal state of proprietary right, and that 8 2 ' ii 260 INDIAN VILLAGE COMMUNITIES. chap. viii. ownership in common by groups of men is only the exception to a general rule. There is, however, one community which will always be carefully ex- amined by the inquirer who is in quest of any lost institution of primeval society. How far soever any such institution may have undergone change among the branch of the Indo-European family which has been settled for ages in India, it will seldom be found to have entirely cast aside the shell in which it was originally reared. It happens that, among the Hindoos, we do find a form of ownership which ought at once to rivet our attention from its exactly'fitting in with the ideas which our studies in the Law of Persons would lead us to entertain respecting the original condition of property. The Village Com- munity of India is at once an organised patriarchal j society and an assemblage of co-proprietors. The personal relations to each other of the men who compose it are indistinguishably confounded with their proprietary rights, and to the attempts of English functionaries to separate the two may be assigned some of the most formidable miscarriages of Anglo-Indian administration. The Village Com- munity is known to be of immense antiquity. In whatever direction research has been pushed into Indian history, general or local, it has always foimd the Community in existence at the farthest point of 'its progress. A great number of intelligent and CHAP. VIII. CO-OWNERSHIP. 261 observant writers, most of whom had no theory of any sort to support concerning its nature and origm, agree in considering it the least destructible institu- tion of a society which never willingly surrenders any one of its usages to innovation. Conquests and revolutions seem to have swept over it without disturb- ing or displacing it, and the most beneficent systems of government in India have always been those which have recognised it as the ba&is of administration. The mature Roman law, and modem jurisprudence following in its wake, look upon co-ownership as an exceptional and momentary condition of the rights of property. This view is clearly indicated in the maxim which obtains universally in Western Europe, Nemo in communione potest invitua detineri (" No one can be kept in co-proprietorship against his will"). But in India this order of ideas is reversed, and it maybe said that separate proprietorship is al- ways on to way to become propriejhip in common. The process has been adverted to already. As soon as a son is born, he acquires a vested interest in his father's substance, and on attaining years of dis- cretion he is even, in certain contingencies, permitted by the letter of the law to call for a partition of the family estate. As a fact, however, a division rarely takes place even at the death of the father, and the property constantly remains undivided for several generations, though every member of every genera- 1 8 3 262 VILLAGE COMMUNITIES. CHAP. vjii. I" tion has a legal right to an undivided share in it. The domain thus held in common is sometimes ad- ministered by an elected manager, but more generally, and in some provinces always, it is managed by the eldest agnate, by the eldest representative of the eldest line of the stock. Such an assemblage of joint proprietors, a body of kindred holding a domain in common, is the simplest form of an Indian Village Community, but the Community is more than a brotherhood of relatives and more than an association of partners. It is an organised society, and besides providing for the management of the common fund, it seldom fails to provide, by a complete staff of functionaries, for internal government, for police, for the administration of justice, and for the apportion- ment of taxes and public duties. The process which I have described as that under which a Village Community is formed, may be regarded as tjrpical. Yet it is not to be supposed that every Village Community in India drew together in so simple a manner. Although, in the North of India, the archives, as I am informed, almost invariably show that the Community was founded by a single assemblage of blood-relations, they also supply infor- mation that men of alien extraction have always, from time to time, been engrafted on it, and a mere purchaser of a share may generally, under certain conditions, be admitted to the brotherhood. In the South of the Peninsula there are often Communities CHAP. Yin. VILLAGE COMMUNITIES. 263 which appear to have sprung not from one but from two or more families; and there are some whose composition is known to be entirely artificial ; indeed, the occasional aggregation of men of diflferent castes in the same society is fatal to the hypothesis of a com- mon descent. Yet in all these brotherhoods either the tradition is preserved, or the assumption made, of an original common parentage. Mountstuart Elphinstone, who writes more particularly of the Southern Village Communities, observes of them {History of India, i. 126) : '* The popular notion is that the Village landholders are all descended from one or more indi- viduals who settled the village ; and that the only exceptions are formed by persons who have derived their rights by purchase or otherwise from members of the original stock. The supposition is confirmed by the fact that, to this day, there are only single families of landholders in small villages and not many in large ones; but each has branched out into so many members that it is not uncommon for the whole agricultural labour to be done by the landholders, without the aid either of tenants or of labourers. The rights of the landholders are theirs collectively, and, though they almost always have a more or less perfect partition of them, they never have an entire separation. A landholder, for instance, can sell or mortgage his rights ; but he must first have the con- sent of the Village, and the purchaser steps exactly 9 4 264 TYPE OF THE COMMUNITY. chap. vui. into his place and takes up all his obligations. If a family becomes extinct, its share returns to the com- mon stock.*' Some considerations which have been oflfered in the fifth chapter of this volume will assist the reader, I trust, in appreciating the significance of Elphinstone's language. No institution of the primitive world is likely to have been preserved to our day, unless it has acquired an elasticity foreign to its original nature through some vivifying legal fiction. The Village Community then is not necessarily an assemblage of blood-relations, but it is either such an assemblage or a body of co-proprietors formed on the model of an association of kinsmen. The type with which it should be compared is evidently not the Roman Family, but the Roman Gens or House. The Gens was also a group onThe modiel bfihe family; it was the family extended by a variety of fictions of which the exact nature was lost in antiquity. In historical times, its leading characteristics were the very two which Elphinstone remarks in the Village Conununity. There was always the assumption of a common origin, an assumption sometimes notoriously at variance with fact ; and, to repeat the historian's words, " if a family became extinct, its share returned to the common stock." In old Roman law, unclaimed inheritances escheated to the Gentiles. It is further suspected by all who have examined their history that the «■■■■ k CHAP. VIII. TYPE OF THE COMMUNITY. 265 Communities, like the Gentes, have been very gene- rally adulterated by the admission of strangers, but the exact mode of absorption cannot now be ascer- tained. At present, they are recruited, as Elphin- stone tells us, by the admission of purchasers, with the consent of the brotherhood. The acquisition of the adopted member is, however, of the nature of a universal succession ; together with the share he has bought, he succeeds to the liabilities which the vendor had incurred towards the aggregate group. He is an I imilise, and inherits th e legal clothinff of the person whose place he begins to fill. The consent of the whole brotherhood required for his admission may remind us of the consent which the Comitia Curiata, the Parliament of that larger brotherhood of self-styled kinsmen, the ancient Roman common- wealth, so strenuously insisted on as essential to the legalisation of an Adoption or the confirmation of a Will. The tokens of an extreme antiquity are discover- able in almost every single feature of the Indian Village Communities. We have so many independent reasons for suspecting that the infancy of law is distinguished by the prevalence of co-ownership, by the intermixture of personal with proprietary rights, and by the confusion of public with private duties, that we should be justified in deducing many im- portant conclusions from our observation of these 266 BUSSIAN VILLAGES. CHAP. VIII. Aj:' en proprietary brotherhoods, even if no similarly com- pounded societies could be detected in any other part of the world. It happens, however, that much earnest curiosity has been very recently attracted to a similar set of phenomena in those parts of Europe which have been most slightly affected by the feudal transformation of property, and which in many important particulars have as close an affinity with the Eastern as with the Western world. The re- searches of M. de Haxthausen, M. Tengoborski, and others, have shown us that the Russian villages are not fortuitous assemblages of men, nor are they unions founded on contract ; they are naturally organised communities like those of India. It is true that these villages are always in theory the patrimony of some noble proprietor, and the peasants have within historical times been converted into the predial, and to a great extent into the personal, serfs of the seignior. But the pressure of this superior owner- ship has never crushed the ancient organisation of I the village, and it is probable that the enactment of j the Czar of Russia, who is supposed to have introduced serfdom, was really intended to prevent the peasants from abandoning that co-operation without which the old social order could not long be maintained. In the assumption of an agnatic connection between the villagers, in the blending of personal rights with pri- vileges of ownership, and in a variety of spontaneous CHAP. vin. RUSSIAN AND CROATIAN VILLAQES. 267 provisions for internal administration, the Russian Village appears to be a nearly exact repetition of the Indian Community ; but there is one important dif- ference which we note with the greatest interest. The co-owners of an Indian village, though their pro-j perty is blended, have their rights distinct, and this \ separation of rights is complete and continues indefi- * nitely. The severance of rights is also theoretically ^ complete in a Russian village, but there it is only temporary. After the expiration of a given, but not in all cases of the same, period, separate ownerships are extinguished, the land of the viUage is thrown into a mass, and then it is re-distributed among the families composing the community, according to their number. This repartition having been eflfected, the rights of families and of individuals are again allowed to branch out into various lines, which they continue to follow till another period of division comes round. An even more curious variation from this type of ownership occurs in some of those countries which long formed a debateable land between the Turkish empire and the possessions of the House of Austria. In Servia, in Croatia, and the Austrian Sclavonia, the villages are also brotherhoods of persons who are at once co-owners and kinsmen ; but there the inter- nal arrangements of the community differ from those adverted to in the last two examples. The substance of the common property is in this case neither divided \ ^'S) 268 VARIETIES OP THE COMMUNITY. chap. vtji. in practice nor considered in theory as divisible, but the entire land is cultivated by the combined labour of all the villagers, and the produce is annually dis- tributed among the households, sometimes according to their supposed wants, sometimes according to rules which give to particular persons a fixed share of the usufruct. All these practices are traced by the jurists of the East of Europe to a principle which is asserted to be found in the earliest Sclavonian laws, the prin- ciple that the property of families cannot be divided for a perpetuity. The great interest of these phenomena in an in- quiry like the present arises from the light they throw on the developement of distinct proprietary ^rights inside the groups by which property seems to I have been originally held. We have the strongest reason for thinking that property once belonged not to individuals nor even to isolated families, but to larger societies composed on the patriarchal model ; but the mode of transition from ancient to modem ownerships, obscure at best, would have been infi- nitely obscurer if several distinguishable forms of Village Communities had not been discovered and examined. It is worth while to attend to the varieties of internal arrangement within the patriarchal groups which are, or were till recently, observable among races of Indo-European blood. The chiefs of the ruder Highland clans used, it is said, to dole out CHAP. VIII. VARIETIES OP THE COMMUNITY. 269 food to the heads of the households under their juris- diction at the very shortest intervals, and sometimes clay by day. A periodical distribution is also made to the Sclavonian villagers of the Austrian and Turkish provinces by the elders of their body, but then it is a distribution once for all of the total produce of the year. In the Russian villages, how- ever, the substance of the property ceases to be looked upon as indivisible, and separate proprietary claims are allowed freely to grow up, but then the progress of separation is peremptorily arrested after it has continued a certain time. In India, not only is there no indivisibility of the common fund, but separate proprietorship in parts of it may be indefinitely prolonged and may branch out into any number of derivative own erships, the de facto partition of the stock being, however, checked by inveterate usage, and by the rule against the admission of strangers without the consent of the brotherhood. It is not of course intended to insist that these different forms of the Village-Community represent distinct stages in a process of transmutation which has been everywhere accomplished in the same manner. But, though the evidence does not warrant our going so far as this, it renders less presumptuous the conjecture that private property, in the shape in which we know it, was chiefly formed by the gradual disentanglement of the separate rights of individuals from the blended rights 270 PROBLEM AS TO ORIGIN OF PROPERTY. chap.vui. of a community. Our studies in the Law of Persons seemed to show us the Family expanding into the Agnatic group of kinsmen, then the Agnatic group dissolving into separate households ; lastly the house- hold supplanted by the individual; and it is now suggested that each step in the change corresponds to an analogous alteration in the nature of Ownership. If there be any truth in the suggestion, it is to be observed that it materially affects the problem which theorists on the origin of Property have generally proposed to themselves. The question — perhaps an insoluble one — which they have mostly agitated is, what were the motives which first induced men to respect each other's possessions? It*may still be put, without much hope of finding an answer to it, in the form of any inquiry into the reasons which led one composite group to keep aloof from the domain of another. But, if it be true that far the most im- portant passage in the history of Private Property is its gradual elimination from the co-ownership of kinsmen, then the great point of inquiry is identi- cal with that which lies on the threshold of all historical law — what were the motives which origi- nally prompted men to hold together in the family union? To such a question. Jurisprudence, xmas- sisted by other sciences, is not competent to give a reply. The fact can only be noted. The undivided state of property in ancient so- CHAP. VIII. ANCIENT DIFFICULTIES OF AUENATION. 271 cieties is consistent with a peculiar sharpness of division, which shows itself as soon as any single share is completely separated from the patrimony of the group. This phenomenon springs, doubtless, from the circumstance that the property is supposed to become the domain of a new group, so that any dealing with it, in its divided state, is a transaction between two highly complex bodies. I have already compared Ancient Law to Modem International Law, in respect of the size and complexity of the corporate associations, whose rights and duties it settles. As the contracts and conveyances known to ancient law are contracts and conveyances to which not single individuals, but organised companies of (■ ^ men, are parties, they are in the highest degree cere- monious ; they require a variety of symbolical acts and words intended to impress the business on the memory of all who take part in it; and they de- mand the presence of an inordinate number of wit- nesses. From these peculiarities, and others allied to them, springs the universally unmalleable charac- ter of the ancient forms of property. Sometimes the patrimony of the family is absolutely inalienable, as was the case with the Sclavonians, and still oftener, though alienatioiis may not be entirely illegitimate, they are virtually impracticable, as among most of the Germanic tribes, from the necessity of having the consent of a large number of persons to the transfer. ^ 272 ANCIENT DIFFICULTIES OF ALIENATION, chap. viii. Where these impediments do not exist, or can be surmounted, the act of conveyance itself is generally burdened with a perfect load of ceremony, in which not one iota can be safely neglected. Ancient law uniformly refuses to dispense with a single gesture, however grotesque; with a single syllable, however its meaning may have been forgotten ; with a single witness, however superfluous may be his testimony. The entire solemnities must be scrupulously com- pleted by persons legally entitled to take part of it, or else the conveyance is null, and the seller is re-established in the rights of which he had vainly attempted to divest himself. These various obstacles to the free circulation of the objects of use and enjoyment, begin of course to make themselves felt as soon as society has acquired even a slight degree of activity, and the expedients by which advancing communities endeavour to over- come them form the staple of the history of Property. Of such expedients there is one which takes prece- dence of the rest from its antiquity and universality. The idea seems to have spontaneously suggested itself to a great number of early societies, to classify property into kinds. One kind or sort of property is placed on a lower footing of dignity than the others, but at the same time is relieved from the fetters which antiquity has imposed on them. Sub- sequently, the superior convenience of the rules go- CHAP. VIII. KINDS OF PROPERTY- 273 veming the transfer and descent of the lower order of property becomes generaUy recognised, and by a gradual course of innovation the plasticity of the less dignified class of valuable objects is communis cated to the classes which stand conventionally higher. The history of Roman Property Law is the history of the assimilation of Res Mancipi to Res Nee Mancipi. The history of Property on the European Continent is the history of the subversion of the feudalised law of land by the Romanised law of moveables; and, though the history of ownership in England is not nearly completed, it is visibly the law of personalty which threatens to absorb and anni- hilate the law of realty. The only natural classification of the objects of enjoyment, the only classification which corresponds with an essential difference in the subject-matter, is that which divides them into Moveables and Immove- ables. Familiar as is this classification to juris- prudence, it was very slowly developed by Roman law, from which we inherit it, and was only finally adopted by it in its latest stage. The classifications of Ancient Law have sometimes a superficial resem- blance to this. They occasionally divide property into categories, and place immoveables in one of them ; but then it is found that they either class along with immoveables a number of objects which have no sort of relation with them, or else divorce them T f- f ■■■ • .; / 274 ANCIENT KINDS OP PROPERTY. chap. viu. from various rights to which they have a close ajfi- nity. Thus, the Res Mancipi of Roman Law included not only land, but slaves, horses, and oxen. Scottish law ranks with land a certain class of securities, and Hindoo law associates it with slaves. English law, on the other hand, parts leases of land for years from other interests in the soil, and joins them to per- sonalty under the name of chattels real. Moreover, the classifications of Ancient Law are classifications implying superiority and inferiority ; while the dis- tinction between moveables and immoveables, so long at least as it was confined to Roman jurisprudence, carried with it no suggestion whatever of a difference in dignity. The Res Mancipi, however, did certainly at first enjoy a 'precedence over the Res Nee Man- cipi, as did heritable property in Scotland and realty in England, over the personalty to which they were opposed. The lawyers of all systems have spared no pains in striving to refer these classifications to some intelligible principle ; but the reasons of the severance must ever be vainly sought for in the philosophy of law: they belong not to its philosophy, but to its history. The explanation which appears to cover the greatest number of instances is, that the objects of enjoyment honoured above the rest were the forms of property known first and earliest to each particular community, and dignified therefore emphatically with h I the designation of Property. On the other hand, the CHAP. VIII. ANCIENT CLASSIFICATIONS. 275 articles not enumerated among the favoured objects seem to have been placed on a lower standing, be- cause the knowledge of their value was posterior to the epoch at which the catalogue of superior property was settled. They were at first unknown, rare, li- nuted in their uJ, or d« regarded ., me« ap^en- dages to the privileged objects. Thus, though the Roman Res Mancipi included a number of moveable . articles of great value, still the most costly jewels I were never allowed to take rank as Res Mancipi, be- I cause they were unknown to' the early Romans. In I the same way chattels real in England are said to have been degraded to the footing of personalty, from the infrequency and valuelessness of such estates under the feudal land-law. But the grand point of interest is, the continued degradation of these commodities when their importance had increased and their num- ber had multiplied. Why were they not successively included among the favoured objects of enjoyment? One reason is found in the stubbornness with which Ancient Law adheres to its classifications. It is a characteristic both of uneducated minds and of early societies, that they are little able to conceive a general rule apart from the particular applications of it with which they are practically familiar. They cannot dissociate a general term or maxim from the special examples which meet them in daily experi- ence; and in this way the designation covering the T 2 276 DEGRADATION OP INFERIOR PROPERTY, chap. viir. best-known forms of property is denied to articles which exactly resemble them in being objects of en- joyment and subjects of right. But to these influ- ences, which exert peculiar force in a subject-matter so stable as that of law, are afterwards added others more consistent with progress in enlightenment and in the conceptions of general expediency. Courts and lawyers become at last alive to the inconvenience of the embarrassing formalities required for the transfer, recovery, or devolution of the favoured commodities, and grow unwilling to fetter the newer descriptions of property with the technical trammels which characterised the infancy of law. Hence arises a disposition to keep these last on a lower grade in the arrangements -of Jurisprudence, and to permit their transfer by simpler processes than those which, in archaic conveyances, serve as stumbling-blocks to good faith and stepping-stones to fraud. We are perhaps in some danger of under- rating the inconveniences of the ancient modes of transfer. Our instruments of conveyance are writ- ten, so that their language, well pondered by the professional draftsman, is rarely defective in accu- racy. But an ancient conveyance was not written, but acted. Gestures and words took the place of written technical phraseology, and any formula mis- pronounced, or symbolical act omitted, would have vitiated the proceeding as fatally as a material mis- CHAP. VIII. DEFINITION OF RES MANaPI. 277 take in stating the uses or setting out the remainders would, two hundred years ago, have vitiated an English deed. Indeed, the mischiefs of the archaic ceremonial are even thus only half stated. So long as elaborate conveyances, written or acted, are re- quired for the alienation of land alone, the chances of mistake are not considerable in the transfer of a description of property which is seldom got rid of with much precipitation. But the higher class of property in the ancient world comprised not only land but several of the commonest and several of the most valuable moveables. When once the wheels of society had begun to move quickly, there must have been immense inconvenience in demanding a highly intricate form of transfer for a horse or an ox, or for the most costly chattel of the old world — the Slave Such commodities must have been constantly and even ordinarily conveyed with incomplete forms, and held, therefore, under imperfect titles. The Res Mancipi of old Roman law were, land — in historical times, land on Italian soil, — slaves and beasts of burden, such as horses and oxen. It is impossible to doubt that the objects which make up the class are the instruments of agricultural labour, the commodities of first consequence to a primitive people. ' 'Such commodities were at first, I imagine, called emphatically Things or Property, and the mode of conveyance by which they were transferred was T 3 ^ '-"^ V I. 278 RES NEC MANCIPI. chap. viii. called a Mancipium or Mancipation ; but it was not probably till much later that they received the dis- ^ tinctive appellation of Res Mancipi, " Things which I r equire ^aJVfanripatinn ," By their side there may hav^"^iitedor grown up a class of objects, for which it was not worth while to insist upon the full cere- mony of Mancipation. It would be enough if, in transferring these last from owner to owner, a part only of the ordinary formalities were proceeded with-, namely, that actual delivery, physical transfer, or tr adition ^ which is the mojt obvious index of a change of proprietorship. Such commodities were the Res Nee Mancipi of the ancient jurisprudence, "things which did not require a Mancipation," little prized probably at first, and not often passed from one group of proprietors to another. While, however, the list of the Res Mancipi was irrevocably closed, that of the ^ |) Res Nee Mancipi admitted of indefinite expansion ; ^f and hence every fresh conquest of man over material nature added an item to the Res Nee Mancipi, or effected an improvement in those already recognised- Insensibly, therefore, they mounted to an equality with the Res Mancipi, and the impression of an intrinsic inferiority being thus dissipated, men began to observe the manifold advantages of the simple formality which accompanied their transfer over the more intricate and more venerable ceremonial. Two / of the agents of logpl ^ dB^dk^a^n, Fictions -and 1 Equity, were assiduously employed by the Roman CHAP. vm. TRADITION. 279 lawyers to give the practical effects of a Mancipation ta a Tradition ; and, though Eoman legislators long shrank from enacting that the right of property in a Res Mancipi should be immediately transferred by bare delivery of the article, yet even this step was at last ventured upon by Justinian, in whose jurispru- dence the difference between Res Mancipi and Res Nee Mancipi disappears, and Tradition or Delivery becomes the one great conveyance known to the law. The marked preference which the Roman lawyers very early gave to Tradition caused them to assign it a place in their theory which has helped to blind their modem disciples to its true history. It was classed among the " n atura l " modes of acquisition, > j x both because it was generally practised among the Italian tribes, and because it was a process which ^^y attained its object by the simplest mechanism. If the expressions of the jurisconsults be pressed, they undoubtedly imply that Tradition, which belongs to the Law Natural, is more ancient than Mancipation, which is an institution of Civil Society ; and this, I , need not say, is the exact reverse of the truth. The distinction between Res Mancipi and Res Nee Mancipi is the type of a class of distinctions to which civilisation is much indebted, distinctions which run through the whole mass of commodities, placing a few of them in a class by themselves, and relegating the others to a lower category. The inferior kinds of T 4 280 OTHER ANCIENT CLASSIFICATIONS. chap. vnr. property are first, from disdain and disregard, re- leased from the perplexed ceremonies in which primi- tive law delights, and thus afterwards, in another state of intellectual progress, the simple methods of transfer and recovery which have been allowed to come into use serve as a model which condemns by its conve- nience and simplicity the cumbrous solemnities in- herited from ancient days. But, in some societies, the trammels in which Property is tied up are much too complicated and stringent to be relaxed in so easy a manner. Whenever male children have been bom to ^ a Hindoo, the law of India, as I have stated, gives ^ p> them all an interest in his property, and makes their I r»^U consent a necessary condition of its alienation. In I ^ ^ the same spirit, the general usage of the old Grermanic peoples — it is remarkable that the Anglo-Saxon cus- toms seem to have been an exception — forbade aliena-^ tions without the consent of the male children ; and the primitive law of the Sclavonians even prohibited them altogether. It is evident that such impediments as these cannot be overcome by a distinction between kinds of property, inasmuch as the difiiculty extends to commodities of aU sorts ; and accordingly. Ancient Law, when once launched on a course of improvement, encounters them with a distinction of another charac- ter, a distinction classifying property, not according to its nature but according to its origin. In India, where there are traces of both systems of classifica- ctiAP.viii. INHERITANCES AND ACQUISITIONS. 281 tion, the one which we are considering is exempli- fied in the difference which Hindoo law establishes between Inheritances and Acquisitions. The inherited property of the father is shared by the children as soon as they are bom ; but according to the custom of most provinces, the acquisitions made by him during his lifetime are whoUy his own, and can be transferred by him at pleasure. A similar distinction was not unknown to Roman law, in which the earliest innovation on the Parental Powers took the form of a permission given to the son to keep for himself whatever he might have acquired in military service. But the most extensive use ever made of this mode of classification appears to have been among the Ger- mans. I have repeatedly stated that the aUod^ though not inalienable, was commonly transferable with the greatest difiiculty; and moreover, it descended ex- clusively to the agnatic kindred. Hence an extraor- dinary variety of distinctions came to be recognised, all intended to diminish the inconveniences insepara- ble from allodial property. The wehrgeld ^ for ex- ample, or composition for the homicide of a relative, which occupies so large a space in German jurispru- dence, formed no part of the family domain, and descended according to rules of succession altogether different. Similarly, the reipus^ or fine leviable on the re-marriage of a widow, did not enter into the allod of the person to whom it was paid, and followed r. 282 INHERITANCES AND ACQUISITIONS, chap. tui. a line of devolution in which the privileges of the agnates were neglected. The law, too, as among the Hindoos, distinguished the Acquisitions of the chief of the household from his Inherited property, and permitted him to deal with them under much more liberal conditions. Classifications of the other sort were also admitted, and the familiar distinction drawn between land and moveables ; but moveable property was divided into several subordinate cate- gories, to each of which different rules applied. This exuberance of classification, which may strike us as strange in so rude a people as the German conquerors of the Empire, is doubtless to be explained by the presence in their systems of a considerable element of Koman law, absorbed by them during their long sojourn on the confines of the Roman dominion. It is not difficult to trace a great number of the rules governing the transfer and devolution of the commo- dities which lay outside the allod^ to their source in Roman jurisprudence, from which they were pro- bably borrowed at widely distant epochs, and in fragmentary importations. How far the obstacles to the free circulation of property were surmounted by such contrivances, we have not the means even of conjecturing, for the distinctions adverted to have no modem history. As I before explained, the allodial form of property was entirely lost in the feudal, and when the consolidation of feudalism was once* com- CHAP. Till. LAND AND GOODS. 283 pleted, there was practically but one distinction left standing of all those which had been known to the western world — the distinction between land and goods, immoveables and moveables. Externally this distinction was the same with that which Roman law had finally accepted, but the law of the middle ages diflfered from that of Rome in distinctly consider- ing immoveable property to be more dignified than moveable. Yet this one sample is enough to show the importance of the class of expedients to which it belongs. In all the countries governed by systems based on the French codes, that is, through much the greatest part of the Continent of Europe, the law of moveables, which was always Roman law, has superseded and annulled the feudal law of land. England is the only country of import- ance in which this transmutation, though it has gone some way, is not nearly accomplished. Our own, too, it may be added, is the only considerable European country in which the separation of moveables from immoveables has been somewhat disturbed by the same influences which caused the ancient classifications to depart from the only one which is countenanced by nature. In the main, the English disti nction h as been^ between land and goods ; but a certain class of goods have gone as heir-iooms"with the land, and a certain description of interests in land have from historical causes been ranked with personalty. This is not the 284 PRESCRIPTION. chap. viii. only instance in which English jurisprudence, stand- ing apart from the main current of legal modification, has reproduced phenomena of archaic law. I proceed to notice one or two more contrivances by which the ancient trammels of proprietary right were more or less successfully relaxed, premising that the scheme of this treatise only permits me to men- tion those which are of great antiquity. On one of them in particular it is necessary to dwell for a mo- ment or two, because persons unacquainted with the early history of law will not be easily persuaded that a principle, of which modem jurisprudence has very slowly and with the greatest difficulty obtained the recognition, was really familiar to the very infancy of legal science. There is no principle in all law which the modems, in spite of its beneficial character, have been so loath to adopt and to carry to its legitimate consequences as that which was known to the Romans I as Usj icafion , and which has descended to modem jurisprudence under the name of Pre scription . It was a positive rule of the oldest Roman law, a rule older than the Twelve Tables, that commodities which had been uninterruptedly possessed for a cer- tain period became the property of the possessor. The period of possession was exceedingly short — one or two years according to the nature of the commodities — and in historical times Usucapion was only allowed to operate when possession had I CHAP. VIII. INFLUENCE OF CANON LAW. 28$ commenced in a particular way; but I think it likely that at a less advanced epoch possession was converted into ownership imder conditions even less severe than we read of in our authorities. As I have said before, I am far from asserting that the respect of men for defacto possession is a pheno- menon which jurisprudence can accoimt for by itself, but it is very necessary to remark that primitive societies, in adopting the principle of Usucapion, were not beset with any of the speculative doubts and hesitartions which have impeded its reception among the moderns. Prescriptions were viewed by the modem lawyers, first with repugnance, afterwards with reluctant approval. In several countries, in- cluding our own, legislation long declined to advance beyond the rude device of barring all actions based on a wrong which had been suffered earlier than a fixed point of time in the past, generally the first year of some proceeding reign ; nor was it till the middle ages had finally closed, and James the First had ascended the throne of England, that we ob- tained a true statute of limitation of a very im- perfect kind. This tardiness in copying one of the most famous chapters of Roman law, which was no doubt constantly read by the majority of European lawyers, the modem world owes to the influence of the Canon Law. The ecclesiastical customs out of which the Canon Law grew, concerned as they were 286 INFLUENCE OF CANON LAW. chap. viii. with sacred or quasi-sacred interests, very naturally regarded the pririleges which they conferred as in- capable of being lost through disuse however pro- longed ; and in accordance with this view, the spiri- tual jurisprudence, when afterwards consolidated, was distinguished by a marked leaning against Prescrip- tions. It was the fate of the Canon Law, when held up by the clerical lawyers as a pattern to secular legis- lation, to have a peculiar influence on first principles. It gave to the bodies of custom which were formed throughout Europe far fewer express rules than did the Roman law, but then it seems to have communi- cated a bias to professional opinion on a surprising number of fundamental points, and the tendencies thus produced progressively gained strength as each system was developed. One of the dispositions it produced was a disrelish for Prescriptions ; but I do not know that this prejudice would have operated as powerfully as it has done, if it had not fallen in with the doctrine of the scholastic jurists of the realist sect, who taught that, whatever turn actual legislation might take, a rights how long soever neg- lected, was in point of fact indestructible. The remains of this state of feeling still exist. Wherever the philosophy of law is earnestly discussed, ques- tions respecting the speculative basis of Prescription are always hotly disputed ; and it is still a point of the greatest interest in France and Germany, whether CHAP. VIII. ROMAN USUCAPION. 287 a person who has been out of possession for a series of years is deprived, of his ownership as a penalty for his neglect, or loses it through the summary inter- position of the law in its desire to have ajinis litium. But no such scruples troubled the mind of early Roman society. Their ancient usages directly took away the ownership of everybody who had been out of possession, under certain circumstances, during one or two years. What was the exact tenor of the rule of Usucapion in its earliest shape, it is not easy to say ; but, taken with the limitations which we find attending it in the books, it was a most useful security against the mischiefs of a too cumbrous system of conveyance. In order to have^e benefit of LTsucapion^TTwas necessary that the adverse pos- session should have begun in good faith, that is, with belief on the part of the possessor that he was law- fully acquiring the property, and it was farther re- quired that the commodity should have been trans- ferred to him by some mode of alienation which, however imequal to conferring a complete title in the particular case, was at least recognised by the law. In the case therefore of a Mancipation, however slovenly the performance might have been, yet if it had been carried so far as to involve a Tradition or Delivery, the vice of the title would be cured by Usucapion in two years at most. I know nothing in the practice of the Romans which testifies so strongly /' 288 COLLUSIVE RECOVERIES. chap. vui. (to their legal genius as the use which they made of Usucapion. The difficulties which beset them were nearly the same with those which embarrassed and still embarrass the lawyers of England. Owing to the complexity of their system, which as yet they had neither the courage nor the power to recon- struct, actual right was constantly getting divorced from technical right, the equitable ownership from the legal. But Usucapion, as manipulated by the jurisconsults, supplied a self-acting machinery, by which the defects of titles to property were always in course of being cured, and by which the owner- ships that were temporarily separated were again rapidly cemented together with the briefest possible ) delay. Usucapion did not lose its advantages till the reforms of Justinian. But as soon as law and equity had been completely fused, and when Manci- pation ceased to be the Roman conveyance, there was no further necessity for the ancient contrivance, and I Usucapion, with its periods of time considerably ^ \ lengthened, became the Prescription which has at length been adopted by nearly all systems of modern law. I pass by with brief mention another expedient having the same object with the last, which, though it did not immediately make its appearance in English legal history, was of immemorial antiquity in Roman law; such indeed is its apparent age that some CHAP. VIII. COLLUSIVE RECOVERIES. 289 ■ German civilians, not sufficiently aware of the light thrown on the subject by the analogies of English law, have thought it even older than the Mancipa- tion. I sp eak of t he Cessio in Jure, a collusive recovery, in a Court of law, of property sought to / be conveyed . The plaintiff claimed the* subject of this proceeding with the ordinary forms of a litiga- tion ; the defendant made default ; and the commodity was of course adjudged to the plaintiff. I need scarcely remind the English lawyer that this ex- pedient suggested itself to our forefathers, and pro- duced those famous Fines and Recoveries which did so much to undo the harshest trammels of the feudal ^ land-law. The Roman and English contrivances have very much in common and illustrate each other most instructively, but there is this difference be- tween them, that the object of the English la^vyers was to remove complications abeady introduced into the title, while the Roman jurisconsults sought to prevent them by substituting a mode of transfer necessarily unimpeachable for one which too often miscarried. The device is in fact one which suggests itself as soon as Courts of Law are in steady opera- tion, but are nevertheless still under the empire of primitive notions. In an advanced state of legal j{ opinion, tribunals regard collusive litigation as an abuse of their procedure; but there has always been a time when, if their forms were scrupu- u 290 PROPERTY AND POSSESSION. CHAP. VIII. ( ^) (' / f lously complied with, they never dreamed of looking further. The influence of Courts of La w and of their proce- dure upon Property has been most extensive, but the, subject is too large for the dimensions of this treatise, and would carry us further down the course of legal history than is consistent with its scheme. It is desirable, however, to mention, that to this influence we must attribute the importance of the distinction between Propejty.Anjd-PQ§session — not, indeed, the distinction itself, which (in the language of an eminent English civilian) is the same thing as the distinction between the legal right to act upon a thing and the physical power to do so — ^but the extraordinary im- portance which the distinction has obtained in the philosophy of law. Few educated persons are so little versed in legal literature as not to have heard that the language of the Roman jurisconsults on the subject of Possession long occasioned the greatest possible perplexity, and that thie genius of Savigny is supposed to have chiefly proved itself by the solu- tion which he discovered for the enigma. Possession, in fact, when employed by the Roman lawyers, ap- pears to have contracted a shade of meaning not easily accounted for. The word, as appears from its etymology, must have originally denoted physical contact or physical contact resumeable at pleasure ; but, as actually used without any qualifying epithet, CHAP. VIII. PROPERTY AND POSSESSION. 291 it signifies not simply physical detention, but physical detention coupled with the intention to hold tlie thing detainfid-««-o55te3Sn^ Savigny, following Niebuhr, perceived that for this anomaly there could only be a historical origin. He pointed out that the Patrician burghers of Rome, who had become tenants of the greatest part of the public domain at nominal rents, were, in the view of the old Roman law, mere posses- sors, but then they were possessors intending to keep their land against all comers. They, in truth, put forward a claim almost identical with that which has recently been advanced in England by the lessees of Church lands. Admitting that in theory they were the tenanjts-at-will of the state, they contended that time and undisturbed enjoyment had ripened their holding into a spepies of ownership, and that it would be unjust to eject them for the purpose of redistributing the doDateri!!! . The association of this claim with the PatricianHenancies, permanently influenced the sense of " possession." Meanwhile the only legal remedies of which the tenants could avail themselves, if ejected or threatejied with disturbance, were the Possessory Interdicts, summary processes of Roman law which were either expressly devised by the Pr«tor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right. It came, therefore, to be u 2 292 PROPERTY AND POSSESSION. chap. viit. understood that everybody who possessed property ds his own had the power of demanding the Interdicts, and, by a system of highly artificial pleading, the Interdictal process was moulded into a shape fitted for the trial of conflicting claims to a disputed pos- session. Then commenced a movement which, as Mr. John Austin pointed out, exactly reproduced itself in English law. Proprietors, domini^ began to prefer the simpler forms or speedier course of the Interdict to the lagging and intricate formalities of the Real Action, and for the purpose of availing themselves of the possessory remedy fell back upon the possession which was supposed to be involved in their proprietorship. The liberty conceded to persons who were not true Possessors, but Owners, to vindicate their rights by possessory remedies, though it may have been at first a boon, had ultimately the effect of seriously deteriorating both English and Roman juris- prudence. The Roman law owes to it those subtleties on the subject of Possession which have done so much to discroiiit it, while English law, after the actions which it appropriated to the recovery of real property had fallen into the most hopeless confusion, got rid at last of the whole tangled mass by a heroic remedy. No one can doubt that the virtual abolition of the English real actions which took place nearly thirty years since was a public benefit, but still persons sensi- tive to the harmonies of jurisprudence will lament / / ' CHAP. VIII. LAW AND EQUITY. 293 that, instead of cleansing, improving, and simplifying the true proprietary actions, we sacrificed them all to the possessory action of ejectment, thus basing our whole system of land recovery upon a legal fiction. Legal tribunals have also powerfiilly assisted to shape and modify conceptions of proprietary right by means of the distinction between Law and Equity, which always makes its first appearance as a distinc- i tion between jurisdictions. Equitable property in ; England is simply property held under the jurisdic- j tion of the Court of Chancery. At Rome, the Prae- , p tor's Edict introduced its novel principles in the guise ^ / of a promise that under certain circumstances a par- A ticular action or a particular plea would be granted ; and, accordingly, the property in bonis^ or Equitable Property, of Roman law was property exclusively \ protected by remedies which had their source in the { Edict. The mechanism by which equitable rights were saved from being overridden by the claims of the legal owner was somewhat different in the two systems. With us their independence is secured / by the Inj unction of the^(^ourt of Chancery. Since however Law and Equity, while not as yet consoli- dated, were administered utider the Roman system by the same Court, nothing like the Injunction was required, and the Magistrate took the simpler course of refusing to grant to the Civil Law Owner those actions and pleas by which alone he could obtain the u 3 294 EQUITABLE PROPERTY. chap. viii. property that belonged in equity to another. But the practical operation of both systems was nearly the same. Both, by means of a distinction in proce- dure, were able to preserve new forms of property in a sort of provisional existence, until the time should come when they were recognised by the whole law. In this way, the Roman PraBtor gave an immediate right of property to the person who had acquired a Res Mancipi by mere delivery, without waiting for the ripening of Usucapion. Similarly he in time re- cognised an ownership in the Mortgagee who had at first been a mere " bailee " or depositary, and in the Emphyteuta, or tenant of land which was subject to a fixed perpetual rent. Following a parallel line of progress, the English Court of Chancery created a special proprietorship for the Mortgagor, for the Cestui que Trust, for the Married Woman who had the advantage of a particular kind of settlement, and for the Purchaser who had not yet acquired a com- plete legal ownership. All these are examples in which forms of proprietary right, distinctly new, were recognised and preserved. But indirectly Pro- perty has been aflfected in a thousand ways by equity both in England and at Rome. Into whatever corner of jurisprudence its authors pushed the powerful in- strument in their command, they were sure to meet, and touch, and more or less materially modify the law of property. When in the preceding pages I have CHAP. vin. FEUDAL VIEW OP OWNERSHIP. 29fi spoken of certain ancient legal distinctions and expe- dients as having powerfully affected the history of ownership, I must be understood to mean that the greatest part of their influence has arisen from the hints and suggestions of improvement infused by them into the mental atmosphere which was breathed by the fabricators of equitable systems. But to describe the influence of Equity on Owner- ship would be to write its history down to our own days. I have alluded to it principally because several esteemed contemporary writers have thought that in the Roman severance of Equitable from Legalproperty we have the clue to that difference in the conception of Ownership, which apparently distinguishes the law of the middle ages from the law of the Roman Em- pire. The leading characteristic of the feudal con- \ ^ ception is its recognition of a double proprietorship, the superior ownership of the lord of the fief coexist- ing with the inferior property or estate of the tenant. Now, this duplication of proprietary right looks, it is urged, extremely like a generalised form of the Ro- man distribution of rights over property into Quiin' tariSn or legal, and (to use a word of late origin) Bonitarian or equitable. Gains himself observes upon the splitting of dominion into two parts as a singularity of Roman law, and expressly contrasts it with the entire or allodial ownership to which other nations were accustomed. Justinian, it is true, re- V 4 '296 • ROMAN AND BARBARIAN LAW. chap. Tin. consolidated dominion into one, but then it was the partiaUy reformed system of the Western Empire, and not Justinian's jurisprudence, with which the barbarians were in contact during so many centuries. While they remained poised on the edge of the Em- pire, it may well be that they learned this distinction, which afterwards bore remarkable fruit. In favour of this theory, it must at all events be admitted that the element of Roman law in the various bodies of barbarian custom has been very imperfectly ex- amined. The erroneous or insufficient theories which have served to explain Feudalism resemble each other in their tendency to draw off attention from this par- ticular ingredient in its texture. The older investiga- tors, who have been mostly followed in this country, attached an exclusive importance to the circumstances of the turbulent period during which the Feudal system grew to maturity ; and in later times a new source of error has been added to those already exist- ing, in that pride of nationality which has led German writers to exaggerate the completeness of the social fabric which their forefathers had built up before their appearance in the Roman world. One or two English inquirers who looked in the right quarter for the foundations of the feudal system, failed never- theless to conduct their investigations to any satis- factory result, either from searching too exclusively for analogies in the compilations of Justinian, or from CHAP. vin. ROMAN AND BARBARIAN LAW. 297 confining their attention to the compendia of Roman law which are found appended to some of the extant barbarian codes. But, if Roman jurisprudence had any influence on the barbarous societies, it had pro- bably produced the greatest part of its effects before t he legislation of Justinian, and before the prepara- tion of these compendia. It was not the reformed and purified jurisprudence of Justinian, but the undigested system which prevailed in the Western Empire, and which the Eastern Corpus Juris never succeeded in displacing, that I conceive to have clothed with flesh and muscle the scanty skeleton of barbarous usage. The change must be supposed to have taken place before the Germanic tribes had distinctly appropriated, as conquerors, any portion of the Roman dominions, and therefore long before Germanic monarchs had ordered breviaries of Roman law to be drawn up for the use of their Roman subjects. The necessity for some such hypothesis will be felt by everybody who can appreciate the difference between archaic and developed law. Rude as are the Leges Barharorum which remain to us,' they are not rude enough to satisfy the theory of. their purely barbarous origin; nor have we any reason for believing that we have received, in written records, more than a fraction of the fixed rules which were practised among themselves by the members of the conquering tribes. If We can once persuade our- 298 THE EMPHYTEUSIS. chap. viii. selves that a considerable element of debased Roman law already existed in the barbarian systems, we shall have done something to remove a grave diffi- culty. The German law of the conquerors and the Roman law of their subjects would not have com- bined if they had not possessed more affinity for each other than refined jurisprudence has usually for the customs of savages. It is extremely likely that the \^ codes of the barbarians, archaic as they seem, are ^-^ } only a compound of true primitive usage with half- y^ • • understood Roman rules, and that it was the foreign ingredient which enabled them to coalesce with a Ro- man jurisprudence that had already receded some- what from the comparative finish which, it had acquired under the Western Emperors. But, though all this must be allowed, there are several considerations which render it unlikely that the feudal form of ownership was directly suggested by the Roman duplication of domaimal rights. The distinction between legal and equitable property strikes one as a subtlety little likely to be appre- ciated by barbarians ; and, moreover, it can scarcely be understood unless Courts of Law are contemplated in regular operation. But the strongest reason against this theory is the existence in Roman Law of a form of property — a creation of Equity, it is true — which supplies a much simpler explanation of the transition from one set of ideas to the other. This ^ CHAP. viii. SYSTEMS OF TENANCY. 299 is the Emphyteusis , upon which the Fief of the f middle ages has often been fathered, though without ' much knowledge of the exact share which it had in bringing feudal ownership into the world. The / . A T '1 ^ truth is that the Emphyteusis, not probably as yet , ^ju^ ♦. - known by its Greek designation, marks one stage in a current of ideas which led ultimately to feudalism. The first mention in Roman history of estates larger than could be farmed by a Paterfamilias, with his household of sons and slaves, occurs when we come to the holdings of the Roman patricians. These great proprietors appear to have had no idea of any system of farming by free tenants. Their latifundia seem to have been universally cultivated by slave- gangs, under bailiffs who were themselves slaves or freedmen; and the only organisation attempted ap- pears to have consisted in dividing the inferior slaves into small bodies, and making them the peculium of the better and trustier sort, who thus acquired a kind of interest in the efficiency of their labour. This system was, however, especially disadvantageous to. one class of estated proprietors, the Municipalities. Functionaries in Italy were changed with the rapid- ity which often surprises us in the administration of Rome herself; so that the superintendence of a large landed domain by an Italian corporation must have been excessively imperfect. Accordingly, we are told that with the municipalities began the practice 4a^' 800 THE COLONI. CUAP. VIII. ) » \ f . of letting out agri vectigtdes, that is, of leasing land for a perpetuity to a free tenant, at a fixed rent, and under certain conditions. The plan was afterwards extensively imitated by individual proprietors, and the tenant, whose relation to the owner had origin- I ally been determined by his contract, was subse- I quently recognised by the Prsetor as having himself a qualified proprietorship, which in time became known as an Emphyteusis. From this point the his- tory of tenure parts into two branches. In the course of that long period during which our records of the Eoman Empire are most incomplete, the slave-gangs of the great Roman families became transformed into the colonic whose origin and situation constitute one of the obscurest questions in all history. We may suspect that they were formed partly by the ele- vation of the slaves, and partly by the degradation of the free farmers ; and that they prove the richer classes of the Roman Empire to have become aware of the increased value which landed property obtains when the cultivator has an interest in the produce of the land. We know that their servitude was predial ; that it wanted many of the characteristics of absolute sla- very, and that they acquitted their service to the landlord in rendering to him a fixed portion of the annual crop. We know further that they survived all the mutations of society in the ancient and modern worlds. Though included in the lower courses of the CHAP. VIII. THE EMPHYTEUSIS. 301 feudal structure, they continued in many countries to render to the landlord precisely the same dues which they had paid to the Roman dominusj and from a particular class among them, the coloni medietarii who reserved half the produce for the owner, are descended the metayer tenantry, who still conduct the cultivation of the soil in almost aU the South of Europe. On the other hand, the Emphyteusis, if we may so interpret the allusions to it in the Corpus Juris^ became a favourite and beneficial modification of property; and it may be conjectured that wherever free farmers existed, it was this tenure which regu- lated their interest in the land. The Praetor, as has A been said, treated the Emphy teuta as a true proprietor. | ' When ejected, he was allowed to reinstate himself by a Real Action, the distinctive badge of proprietary right, and he was protected from disturbance by the author of his lease so long as the canon, or quit-rent, ^ was punctually paid. But at the same time it must not be supposed that the ownership of the author of the lease was either extinct or dormant. It was kept alive by a power of re-entry on non-payment of the rent, a right of pre-emption in case of sale, and a certain control over the mode of cultivation. We have, therefore, in the Emph3rteusis a striking ex- ample of the double ownership which characterised feudal property, and one, moreover, which is much simpler and much more easily imitated than the ,) I 802 ORIGm OF TENURE. chaf. viii. juxtaposition of legal and equitable rights. The history of the Roman tenure does not end, however, at this point. We have clear evidence that between the great fortresses which, disposed along the line of the Rhine and Danube, long secured the frontier of ^ the Empire against its barbarian neighbours, there jS * extended a succession of strips of land, the Ofiri ^^^^ ^ lim itrophi^ which were occupied by veteran soldiers of \ !( the Roman army on the terms of an Emphyteusis. There was a double ownership. The Roman State was landlord of the soil, but the soldiers cultivated it without disturbance so long as they held themselves ready to be called out for military service whenever the state of the border should require it. In fact, a sort of garrison-duty, under a system closely resem- bling that of the military colonies on the Austro- Turkish border, had taken the place of the quit rent which was the service of the ordinary Emphyteuta. It seems impossible to doubt that this was the precedent copied by the barbarian monarchs who founded feudalism. It had been within their view for some hundred years, and many of the veterans who guarded the border were, it is to be remembered, themselves of barbarian extraction, who probably spoke the Germanic tongues. Not only does the prox- imity of so easily followed a model explain whence the Frankish and Lombard Sovereigns got the idea of securing the military service of their followers CHAP. VIII. FEUDAL SERVICES. 808 by granting away portions of their public domain ; but it perhaps explains the tendency which inune- diately showed itself in the Benefices to become here- ditary, for an Emphyteusis, though capable of being moulded to the terms of the original contract, never- theless descended as a general rule to the heirs of the grantee. It is true that the holder of a benefice, and more recently the lord of one of those fiefs into which the benefices were transformed, appears to have owed certain services which were not likely to have been rendered by the military colonist, and were certainly not rendered by the Emphyteuta. The duty of respect and gratitude to the feudal superior, the obligation to assist in endowing his daughter and equipping his son, the liability to his guardianship in minority, and many other similar incidents of tenure, must have been literally borrowed from the relations of Patron and Freedman under Roman law, that is, of quondam-master and quondam-slave. But then it is known that the earliest beneficiaries were the personal companions of the sovereign, and it is indisputable that this position, brilliant as it seems, was at first attended by some shade of servile debase- ment. The person who ministered to the Sovereign in his Court had given up something of that absolute personal freedom which was the proudest privilege of the allodial proprietor. 304 SPHERE OF CONTRACT. chap. ix. CHAP. IX. THE EARI.Y HISTORY OF CONTRACT. There are few general propositions concerning the age to which we belong which seem at first sight likely to be received ynth readier concurrence than the assertion that the society of our day is mainly distinguished from that of preceding gene- rations by the largeness of the sphere which is occupied in it by Contract. Some of the phenomena on which this proposition rests are among those most frequently singled out for notice, for comment, and for eulogy. Not many of us are so unobservant as not to perceive that in innumerable cases where old law fixed a man's social position irreversibly at his birth, modem law allows him to create it for himself by convention ; and indeed several of the few exceptions which remain to this rule are constantly denounced with passionate indignation. The point, for instance, which is really debated in the vigorous controversy still carried on upon the subject of negro servitude, is whether the status of the slave does not belong to by-gone institutions, and whether the only relation between employer and labourer which commends CHAP. IX. CONTRACT AND POLITICAL ECONOMY. 305 itself to modem morality be not a relation deter- mined exclusively by contract. The recognition of this difference betwii^l^ ages and the present enters into the very essence of the most famous contemporaiy speculations. It is certain that the science of Political Economy, the only department of moral inquiry which has made any considerable progress in our day, would faU to correspond with the facts of life if it were not true tha t Imperative Law had abandoned the largest part of the field which it once occupied, and had left men to settle rules of conduct for themselves with a liberty never allowed to them till recently. The bias indeed of most persons trained in political economy is to consider the general truth on which their science reposes as entitled to become universal, and, when they apply it as an art, their efforts are ordinarily directed to enlarging the province of Contract and to curtailing that of Imperative Law, except so far as law is necessary to enforce the performance of Contracts. The impulse given by thinkers who are under the influence of these ideas is beginning to be very strongly felt in the Western world. Legislation has nearly confessed its inability to keep pace with the activity of man in discovery, in invention, and in the manipulation of accumulated wealth; and the law even of the least advanced communities tends more and more to become a mere surface-stratum having X 806 CURRENT OPINIONS AS TO CONTRACT, chap. ix. under it an ever-changing assemblage of contraetual rules with which it rarely interferes except to compel compliance with a few fundamental principles, or unless it be called in to punish the violation of good faith. Social inquiries, so far as they depend on the con- sideration of legal phenomena, are in so backward a conditi«i that we need not be surprised at not finding these truths recognised in the commonplaces which pass current concerning the progress of so- ciety. These commonplaces answer much more to our prejudices than to our convictions. The strong jl disinclination of most men to regard morality as ' advancing seems to be especially powerful when the virtues on which Contract depends are in question, and many of us have an almost instinctive reluctance to admitting that good faith and trust in our fellows are more widely diffused than of old, or that there is anything in contemporary manners which parallels the loyalty of the antique world. From time to time, these prepossessions are greatly strengthened by the spectacle of frauds, unheard of before the period at which they were observed, and astonishing from their complication as weU as shocking from criminality. But the very character of these frauds shows clearly that, before they became possible, the moral obligations of which they are the breach must have been more than proportionately developed. It CHAP. IX. THEFT AND BREACH OF TRUST. S07 is the confidence reposed and deserved by the many which affords facilities for the bad faith of the few, so that, if colossal examples of dishonesty occur, there is no surer conclusion than that scrupulous honesty is displayed in the average of the trans4 actions which, in the particular case, have supplied! the delinquent with his opportunity. If we insist j on reading the history of morality as reflected in jurisprudence, by turning our eyes not on the law of Contract but on the law of Crime, we must be careful that we read it aright. The only form of ' dishonesty treated of in the most ancient Roman law is Theft. At the moment at which I write, the newest chapter in the English criminal law is one which attempts to prescribe punishment for the frauds of Trustees. The proper inference from this contrast is not that the primitive Romans Jfj ^\ p practised a higher morality than ourselves. We should rather say that, in the interval between their days and ours, morality has advanced from a very rude to a highly refined conception — from viewing the rights of property as exclusively sacred, to looking upon the rights growing out of the mere unilateral reposal of confidence as entitled to the protection of the penal law. The definite theories of jurists are scarcely nearer the truth in this point than the opinions of the multitude. To begin with the views of the Roman X 2 1 ( 308 THEORIES OF CONTRACT. chap. ix. lawyers, we find them inconsistent with the true history of moral and legal progress. One class of contracts, in which the plighted faith of the con- tracting parties was the only material ingredient, they specifically denominated Contracts juris gentium, and though these contracts were undbubtedfy the latest bom into the Roman system, the expression em- ployed implies, if a definite meaning be extracted from it, that they were more ancient than certain other forms of engagement treated of in Roman law, in which the neglect of a mere technical formality was as fatal to the obligation as misunderstanding or deceit. But then the antiquity to which they were referred was vague, shadowy, and only capable of being understood through the Present; nor was it until the language of the Roman lawyers became the language of an age which had lost the key to their mode of thought that a " Contract of the Law of Nations " came to be distinctly looked upon as a Contract known to man in a State of Nature. Rousseau adopted both the juridical and the popular error. In the Dissertation on the effects of Art and Science upon Morals, the first of his works which at- tracted attention and the one in which he states most unreservedly the opinions which made him the founder of a sect, the veracity and good faith attributed to the ancient Persians are repeatedly pointed out as traits of primitive innocence which have been gradually CHAP. IX. THE SOCIAL COMPACT. 809 obliterated by civilisation; and at a later period he found a basis for all his speculations in the doctrine of an original Social Contract. The So- . cial Contract or Compact is the nxost systematic form which has ever been assumed by the error we are discussing. It is a theory which, though nursed into importance by political passions, de- rived all its sap from the speculations of lawyers. True it certainly is that the famous Englishmen, for whom it had first had attraction, valued it chiefly for its political serviceableness, but, as I shall pre- sently attempt to explain, they would never have arrived at it, if politicians had not long conducted their controversies in legal phraseology. Nor were the English authors of the theory blind to that speculative amplitude which recommended it so strongly to the Frenchmen who inherited it from them. Their writings show they perceived that it could be made to account for all social, quite as well as for all political, phenomena. They had observed the fact, already striking in their day, that of the positive rules obeyed by men, the greater part were created by Contract, the lesser by Imperative Law. But they were ignorant or careless of the historical relation of these two constituents of jurisprudence. It was for the purpose, therefore, of gratifying their speculative tastes by attributing all jurisprudence to a uniform source, as much as with the view of X 3 I 810 ANALYSIS OF SOCIAL PHENOMENA. chap. ix. eluding the doctrines which claimed a divine parentage / for Imperative Law, that they devised the theory that all Law had its origin in Contract. In another stage of thought, they would have been satisfied to leave their theory in the condition of an ingenious hypo- thesis or a convenient verbal formula. But that age was under the dominion of legal superstitions. The State of Nature had been talked about till it had ceased to be regarded as paradoxical, and hence it seemed easy to ^ve a fallacious reality and definite- ness to the contractual origin of Law by insisting on the Social Compact as a historical fact. Our own generation has got rid of these erroneous juridical theories, partly by outgrowing the intel- lectual state to which they belong, and partly by almost ceasing to theorise on such subjects altogether. The favourite occupation of active minds at the pre- sent moment, and the one which answers to the speculations of our forefathers on the origin of the social state, is the analysis of society as it exists and moves before our eyes ; but, through omitting to call in the assistance of history, this analysis too often de- generates into an idle exercise of curiosity, and is especially apt to incapacitate the inquirer for compre- hending states of society which differ considerably from that to which he is accustomed. The mistake of judging the men of other periods by the morality of our own day has its parallel in the mistake of sup- posing that every wheel and bolt in the modem social CHAP. IX. MONTESQUIEU'S APOLOGUE. 811 mac hine had its counterparty in more rudimen tary societies. Such impressions ramify very widely, and maique themselves very subtly, in historical works written in the modern fashion ; but I find the trace of their presence in the domain of jurisprudence in the praise which is frequently bestowed on the little apologue of Montesquieu concerning the Troglodytes, inserted in the Lettres Persanes. The Troglodytes were a people who systematically violated their Con- tracts, and so perished utterly. If the story bears the moral which its author intended, and is em- ployed to expose an anti-social heresy by which this century and the last have been threatened, it is most unexceptionable ; but if the inference be obtained from it that society could not possibly hold together without attaching a sacredness to promises and agree- ments which should be on something like a par with the respect that is paid to them by a mature civilisa- tion, it involves an error so grave as to be fatal to all sound understanding of legal history. The fact is that the Troglodytes have flourished and founded powerful states with very small attention to the obligations of Contract. The point which before all others has to be apprehended in the constitution of primitive societies is that the individual creates for himself few or no rights, and few or no duties. The rules which he obeys are derived first from the sta- tion into which he is bom, and next from the impera- X 4 \ 312 EARLY NOTIONS OF CONTRACT. chap, ix tive commands addressed to him by the chief of the household of which he forms part. Such a system leaves the very smallest room for Contract. The members of the same family (for so we may interpret the evidence) are wholly incapable of contracting with each other, and the family is entitled to disre- gard the engagements by which any one of its subor- dinate members has attempted to bind it. Family, it is true, may contract with family, chieftain with chieftain, but the transaction is one of the same na- ture, and encumbered by as many formalities, as the ■Oienation of property, L the di.regard of o»e iota of the performance is fatal to the obligation. The positive duty resulting from one man's reliance on the word of another is among the slowest conquests of advancing civilisation. Neither Ancient Law nor any other source of evi- dence discloses to us society entirely destitute of the conception of Contract. But the conception, when it first shows itself, is obviously rudimentary. No trustworthy primitive record can be read without perceiving that the habit of mind which induces us to make good a promise is as yet imperfectly deve- loped, and that acts of flagrant perfidy are often mentioned without blame and sometimes described with approbation. In the Homeric literature, for in- stance, the deceitful cunning of Ulysses appears as a virtue of the same rank with the prudence of Nestor CHAP. IX. ANCIENT COpTRACTS. 313 the constancy of Hector, and the gallantry of Achilles. Ancient law is stiU more suggestive of the distance which separates the c rude fo rm of Contract from its maturity ***. At first, nothing is seen like the interpo- sition of law to compel the performance of a promise. That which the law arms with its sanctions is not a promise, but a promise accompanied with a solemn ceremonial. Not only are the formalities of equal importance with the promise itself, but they are, if anything, of greater importance ; for that delicate analysis which mature jurisprudence applies to the conditions of mind under which a particular verbal assent is given appears, in ancient law, to be trans- ferred to the words and gestures of the accompanying performance. No pledge is enforced if a single form be omitted or misplaced, but, on the other hand, if the forms can be shown to have been accurately pro- ceeded with, it is of no avail to plead that the promise was made under duress or deception. The transmu- tation of this ancient view into the familiar notion of a Contract is plainly seen in the history of jurispru- dence. First one or two steps in the ceremonial are dispensed with; then the others are simplified or permitted to be neglected on certain conditions ; lastly, a few specific contracts are separated from the rest and allowed to be entered into without form, the selected contracts being those on which the activity and energy of social intercourse depends. Slowly, 4 814 EARLY ROMAN CONTRACTS. ctap. ix. but most distinctly, the mental engagement isolates itself amid the technicalities, and gradually becomes the sole ingredient on which the interest of the juris- consult is concentrated. Such a mental engagement^ signified through external acts, the Romans caUed a Pact or Convention; and when the Convention has once been conceived as the nucleus of a Contract, it soon becomes the tendency of advancing jurispru- I dence to break away the external shell of form and ^ceremony. Forms are thenceforward only retained so far as they are guarantees of authenticity, and securities for caution and deliberation. The idea of 1a Contract is fully developed, or, to employ the Ro- 1^1 man phrase, Cont fflrfitrP^ ^^^ ^^aofl^d in Par;tfffi The history of this course of change in Roman law is exceedingly instructive. At the earliest dawn of the jurisprudence, the term in use for a Contract was one which is very familiar to the students of historical Latinity. It was nexum^ and the parties to the con- tract were said to be nexi^ expressions which must be carefully attended to on account of the singular durableness of the metaphor on which they are founded. The notion that persons under a contrac- tual engagement are connected together by a strong bond or chain^ continued till the last to influence the Roman jurisprudence of Contract ; and flowing thence it has mixed itself with modem ideas. What then was involved in this nexum or bond ? A definition CHAP. IX. THE NEXUM. **^*^_ -^ 315 >r)v/ which has descended to us from d geritur per cea \h^, ^ !^ ! , ef libram^ "every transaction with the copper and Ih^x<*a- ^ the balance," and these words have occasioned a good ^ ^ ( ^ ,, . deal of perplexity. The copper and the balance are rtu^i*^? W^ the well-known accompaniments of the Mancipation, ^^ . . • ^ the ancient solemnity described in a former chapter, by which the right of ownership in the highest form of Roman Property was transferred from one person to another. Mancipation was a conveyance, and hence has arisen the difficulty, for the definition thus cited p appears to confound Contracts and Conveyances, 1^ which in the philosophy of jurisprudence are not simply kept apart, but are actually opposed to each other. The jus in re, right in rem, right "availing ^ against all the world," or Proprietary Right, is sharply \ distinguished by the analyst of mature jurisprudence from the jits ad rem, right in personam, right " avail- ing a single individual or group," or Obligation. Now Conveyances transfer Proprietary Rights, Con- tracts create Obligations — how then can the two be included under the same name or same general con- ception? This, like many similar embarrassments, has been occasioned by the error of ascribing to the mental condition of an unformed society a faculty which preeminently belongs to an advanced stage of intellectual development, the faculty of distinguish- ing in speculation ideas which are blended in practice. 816 SPECIALISING PROCESS IN ANCIENT LAW. chap. ix. We have indications not to be mistaken of a state of social affairs in which Conveyances and Contracts were practicaDy confounded ; nor did the discrepance of the conceptions become perceptible till men had begun to adopt a distinct practice in contracting and conveying. It may here be observed that we know enough of ancient Roman law to give some idea of the mode of transformation followed by legal conceptions and by legal phraseology in the infancy of Jurisprudence. The change which they undergo appears to be a change from general to special; or, as we might otherwise express it, the ancient conceptions and the I ancient terms are subjected to a process of gradual IL specialisation. An ancient legal conception corre- T"* 'I spends not to one but to several modem conceptions. An ancient technical expression serves to indicate a variety of things which in modern law have separate names allotted to them. If however we take up the history of Jurisprudence at the next stage, we find that the subordinate conceptions have gradually disengaged themselves and that the old general names are giving way to special appellations. The old general conception is not obliterated, but it has ceased to cover more than one or a few of the notions which it first included. So too the old technical name remains, but it discharges only one of the functions which it once performed. We may CHAP. w. SPECIALISING PROCESS IN ANCIENT LAW. 317 exemplify this phenomenon in various ways. Patri- archal Power of all sorts appears, for instance, to have been once conceived as identical in character, and it was doubtless distinguished by one name. The Power exercised by the ancestor was the same whether it was exercised over the family or the ma- terial property — over flocks, herds, slaves, children, or wife. We cannot be absolutely certain of its old Roman name, but there is very strong reason for be- lieving, from the number of expressions indicating shades of the notion of power into which the word |. manus enters, that the ancient general term was li ^ :' / manus. But, when Roman law has advanced a ■ ^ little, both the name and the idea have become spe- cialised. Power is discriminated, both in word and in conception, according to the object over which it is exerted. Exercised over material commodities or 'J • ' • Potestas — over free persons whose services have been made away to another by their own ancestor, it • / ) is mancipium — over a wife, it is still manits. The ^p' old^word, it will be perceived, has not altogether -^"^^'^^ , fallen into desuetude, but is confined to one very special exercise of the authority it had formerly denoted. This example will enable us to compre- hend the nature of the historical alliance between Contracts and Conveyances. There seems to have been one solemn ceremonial at first for all solenm 318 THE NEXUM. chap. ix. transactions, and its name at Rome appears to have been nexum. Precisely the same forms which were in use when a conveyance of property was effected seem to have been employed in the making of a con- tract. But we have not very far to move onwards ) before we come to a period at which the notion of a Contract has disengaged itself from the notion of a Conveyance. A double change has thus taken place. The trSisaction " with the copper and the balance," when intended to have for its office the transfer of property, is known by the new and special name of Mancipation. The ancient Nexum still designates the same ceremony, but only when it is employed for the special purpose of solemnising a contract. When two or three legal conceptions are spoken of as anciently blended in one, it is not intended to im- ply that some one of the included notions may not be older than the others, or, when those others have been formed, may not greatly predominate over and take precedence over them. The reason why one legal conception continues so long to cover several conceptions, and one technical phrase to do instead of several, is doubtless that practical changes are accomplished in the law of primitive societies long before men see occasion to notice or name them. Though I have said that Patriarchal Power was not at first distinguished according to the objects over which it was exercised, I feel sure that Power over cBAr. IX. CHANGES IN THE NEXUM. 319 Children was the root of the ol and I cannot doubt that the earli< Nejam, and the one primarily regarded by those who resorted to it, was to s iye . pro2££3llfi*^^^*y ^ *^® alienation of property. It is likely that a very slight perversiOTi ol: ilie Nexum from its original functions first gave rise to its employment in Contracts, and that the very slightness of the change long prevented its being appreciated or noticed. The old name re- mained because men had not become conscious that they wanted a new one ; the old notion clung to the mind because nobody had seen reason to be at the pains of examining it. We have had the process clearly exemplified in the history of Testaments. A Will was at first a simple conveyance of property. It was only the enormous practical difference that gra- dually showed itself between this particular convey- ance and all others which caused it to be regarded separately, and even as it was, centuries elapsed before the ameliorators of law cleared away the use- less encumbrance of the nominal mancipation, and consented to care for nothing in the Will but the expressed intentions of the Testator. It is unfortu- nate that we cannot track the early history of Con- tracts with the same absolute confidence as the early history of Wills, but we are not quite without hints that contracts first showed themselves through the nexum being put to a new use and after- 320 CHANGES IN THE NEXUM. chap. ix. wards obtained recognition as distinct transactions through the important practical consequences of the experiment. There is some, but not very violent, conjecture in the following delineation of the process. Let us conceive a sale for ready money as the normal type of the Nexum. The seller brought the property of which he intended to dispose — a slave, for example — the purchaser attended with the rough ingots of copper which served for money — and an in- dispensable assistant, the libripens^ presented himself with a pair of scales. The slave with certain fixed formalities was handed over to the vendee — the copper was weighed by the libripens and passed to f the vendor. So long as the business lasted it was a nexuin^ and the parties were nexi ; but the moment it was completed, the nexum ended, and the vendor and purchaser ceased to bear the name derived from their momentary relation. But now, let us move a step onward in commercial history. Suppose the slave transferred, but the money not paid. In that i ^\^ / case, the nexum is finished, so far as the seller is concerned, and when he has once handed over his property, he is no longer nexus ; but, in regard to the purchaser, the nexum continues. The transaction, as to his part of it, is incomplete, and he is still consi- dered to be nexus. It follows, therefore, that the * same terra described the Conveyance by which the I right of property was transmitted, and the personal CHAP. IX. CONVEYANCES AND CONTRACTS. 321 obligation of the debtor for the unpaid purchase- money. We may still go forward, and picture to ourselves a proceeding wholly formal, in which nothing is handed over and nothing paid ; we are brought at once to a transaction indicative of much higher com- mercial activity, an executory Contract of Sale. If it be true that, both in the popular and in the professional view, a Contract was long regarded as an incomplete Conveyance^ the truth has importance for many reasons. The speculations of the last century concerning mankind in a state of nature, are not un- fairly summed up in the doctrine that " in the primi- '| . tive society property was nothing, and obligation / everything; " and it will now be seen that, if the pro- position were reversed, it would be nearer the reality. On the other hand, considered historically, the primitive association of Conveyances and Contracts explains something which often strikes the scholar and jurist as singularly enigmatical, I mean the extraordinary and uniform severity of very ancient systems of law to debtors^ and the extravagant powers which they lodge with creditors* When once we un- derstand that the nexum was artificially prolonged to give time to the debtor, we can better comprehend his position in the eye of the public and of the law. His indebtedness was doubtless regarded as an ano- maly, and suspense of payment in general as an artifice and a distortion of strict rule. The person who had Y I 322 CONVEYANCES AND CONTRACTS. chap. ix. duly consummated his part in the transaction must, on the contrary, have stood in peculiar favour ; and nothing would seem more natural than to arm him with stringent facilities for enforcing the completion of a proceeding which, of strict right, ought never to have been extended or deferred. Nexum, therefore, which originaUy signified a Con- veyance of property, came insensibly to denote a Contract also, and ultimately so constant became the association between this word and the notion of a Contract, that a special term, Ma ncipiu m or Mancipa- tio, had to be used for the purpose of designating the I truenexum or transaction in which the property was J reaUy tr ansfer red. Contracts are therefore now * severed from Conveyances, and the first stage in their history is accomplished, but still they are far enough from that epoch of their development when the pro- mise of the contractor has a higher sacredness than the formalities with which it is coupled. In attempt- ing to indicate the character of the changes passed through in this interval, it is necessary to trespass a little on a subject which lies properly beyond the range of these pages, the analysis of Agreement effected by the Roman jurisconsults. Of this ana- lysis, the most beautiful monument of their sagacity, I need not say more than that it is based on the r theoretical separation of the Obligation from the Con- vention or Pact. Bentham "and Mr. Austin have CHAP. IX. ROMAN ANALYSIS OF AGREEMENT. 323 laid down that the " two tnain essentials of a contract t - _ — lull, ■yi. ^ iiit ff ifii M ■. i.> 'K: , wf w»'-y #•■'••. • *-;**j«.a^.-^ I are these: first, a signification by the promising I party of hi s intenti on to do the acts or to observe the \ forbearances which he promises to do or to observe. | Secondly, a signification by the promisee that he i expects the promising party will fulfil the proferred 'I promise," This is virtually identical with the doctrine of the Roman lawyers, but then, in their view, the result of these " significations," was not a Contract, but a Convention or Pact. A Pact was the utmost product of the engagements of individuals agreeing among themselves, and it distinctly fell short of a Contract. Whether it ultimately became a Contract depended on the question whether the law annexed an Obligation to it. A Contract was a Pact (or Convention) plits an Obligation. So long as the Pact , remained unclothed with the Obligation, it was called J | rnuie or naked. What was an Obligation? It is defined by the Roman lawyers as ^^ Juris vinculum, quo necessitate I adstringimur alicujus solvendaerei." This definition \ connects the Obligation with the Nexum through the common metaphor on which they are founded, and shows us with much clearness the pedigree of a pecu- liar conception. The Obligation is the " bond " or " chain," with which the law joins together persons or groups of persons, in consequence of certain volun- tary acts. The acts which have the effect of attracting T 2 I 324 OBLIGATION. chap. ix. an Obligation are chiefly those classed under the heads of Contract and Delict, of Agreement and Wrong; but a variety of other acts have a similar consequence which are not capable of being comprised in an exact classification. It is to be remarked, however, that the act does not draw to itself the Obligation in consequence of any moral necessity ; it is the law which annexes it in the plenitude of its power, a point the more necessary to be noted, because a different doctrine has sometimes been propounded by modem interpreters of the Civil Law who had moral or metaphysical theories of their own to sup- port. The image of a vinculum juris colours and pervades every part of the Roman law of Contract and Delict. The law bound the parties together, and the chain could only be undone by the process called solutio, an expression still figurative, to which our word " payment " is only occasionally and incidentally equivalent. The consistency with which the figura- tive image was allowed to present itself, explains an otherwise puzzling pecuUarity of Roman legal phra- seology, the fact that " Obligation " signified rights as well as duties, the right, for example, to have a debt paid as well as the duty of paying it. The Romans kept in faPct the* entire -pieture-of^the "legal chain" before their eyes, and regarded one end of it no more and no less than the other. In the developed Roman law, the Convention, as CHAP. IX. CONVENTION AND CONTRACT. 325 /. soon as it was completed, was, in almost all cases, ^ v ^ ' at once crowned with the Obligation, and so became a Contract ; and this was the result to which contract- law was surely tending. But for the purpose of this inquiry, we must attend particularly to the interme- diate stage — that in which something more than a perfect agreement was required to attract the Obliga- tion. This epoch is synchronous with the period at / which the famous Roman classification of Contracts , into four sorts — the Verbal, the Literal, the Real, and the Consensual — had come into use, and during which these four orders of Contracts constituted the only descriptions of engagement which the law would enforce. The meaning of the fourfold distribution is readily understood as soon as we apprehend the theory which severed the Obligation from the Con- vention. Each class of contracts was in fact named from certain formalities which were required over and above the mere agreement of the contracting parties. In the Verbal Contract, as soon as the Convention was effected, a form of words had to be gone through before the vinculum juris was attached to it. In the Literal Contract, an entry in a ledger or table-book had the effect of clothing the Convention wit h the Obligation, and the same result followed, in the case of the Real Contract, fipom the delivery of the Res or Thing which was the subject of the preliminary en- gagement. The contracting parties came, in short, Y 3 326 KOMAN CONTRACTS. chap. ix. to an understanding in each case; but, if they went no further, they were not obliged to one another, and could not compel performance or ask redress for a breach of faith. But let them comply with certain prescribed formalities, and the Contract was imme- diately complete, taking its name from the particular form which it had suited them to adopt. The excep- tions to this practice will be noticed presently. I have enumerated the four Contracts in their his- torical order, which order, however, the Roman Institutional writers did not invariably follow. There can be no doubt that the Verbal Contract was the most ancient of the four, and that it is the eldest known descendant of the primitive Nexum. Several species of Verbal Contract were anciently in use, but the most important of all, and the only one treated of *. by our authorities, was effected by means of a stiptda- fj tion^ that is, a Question and Answer; a question ad- dressed by the person who exacted the promise, and an answer given by the person who made it. This question and answer constituted the additional ingre- dient which, as I have just explained, was demanded by the primitive notion over and above the mere agreement of the persons interested. They formed the agency by which the Obligation was annexed. The old Nexum has now bequeathed to maturer juris- prudence first of all the conception of a chain uniting the contracting parties, and this has become the Obli- CHAP. IX. THE VERBAL CONTRACT. 32^ gation . It has further transmitted the notion of a ceremonial accompanying and consecrating the en- gagement, and this ceremonial has been transmuted into the Stipulation. The conversion of the solemn conveyance, which was the prominent feature of the original Nexum, into a mere question and answer, would be more of a mystery than it is if we had not the analogous history of Roman Testaments to en- lighten us. Looking to that history, we can under- stand how the formal Conveyance was first separated from the part of the proceeding which had immediate reference to the business in hand, and how afterwards it was omitted altogether. As then the question and answer of the Stipulation were unquestionably the Nexum in a simplified shape, we are prepared to find that they long partook of the nature of a technical form. It would be a mistake to consider them as exclusively recommending themselves to the older Roman lawyers through their usefulness in furnishing persons meditating an agreement with an opportunity for consideration and reflection. It is not to be dis- puted that they had a value of this kind, which was gradually recognised; but there is proof that their function in respect to Contracts was at first formal and ceremonial in the statement of our authorities, that not every question and answer was of old suffi- cient to constitute a Stipulation, but only a question T 4 328 CONVENIENCE OF VERBAL CONTRACT, chap. «. and answer couched in technical phraseology specially appropriated to the particular occasion. But although it is essential for the proper apprecia- tion of the history of contract-law that the Stipulation should be understood to have been looked upon as a solemn form before it was recognised as a useful security, it would be wrong on the other hand to shut our eyes to its real usefulness. The Verbal Contract, though it had lost much of its ancient im- portance, survived to the latest period of Roman jurisprudence ; and we may take it for granted that no institution of Roman law had so extended a longevity unless it served some practical advantage. I observe in an EngUsh writer some expressions of sur- prise that the Romans even of the earliest times were content with so meagre a protection against haste and irreflection. But on examining the Stipulation closely, and remembering that we have to do with a state of society in which written evidence was not easily procurable, I think we must admit that this Question and Answer, had it been expressly devised to answer the purpose which it served, would have been justly designated a highly ingenious expedient. It was the promisee who, in the character of stipulator, put all the terms of the contract into the form of a question, and the answer was given by the promisor. " Do you promise that you will deliver me such and such a slave, at such and such a place, on such and such a CHAP. K. CONVENIENCE OF VERBAL CONTRACT. 329 day?" "I do promise." Now, if we reflect for a moment, we shall see that this obligation to put the promise interrogatively inverts the natural position of the parties, and, by effectually breaking the tenor of the conversation, prevents the attention from gliding over a dangerous pledge. With us, a verbal promise is, generally speaking, to be gathered exclu* sively from the words of the promisor. In old Roman law, another step was absolutely required; it was necessary for the -promisee, after the agreement had been made, to sum up all its terms in a solemn inter* rogation ; and it was of this interrogation, of course, ^ and of the assent to it, that proof had to be given at the trial — not of the promise, which was not in itself binding. How great a difference this seemingly in- significant peculiarity may make in the phraseology of contract-law is speedily realised by the beginner in Koman jurisprudence, one of whose first stumbling- blocks is almost universally created by it. When we in English have occasion, in mentioning a contract, to connect it for convenience' sake with one of the parties, — ^for example, if we wished to speak generally of a contractor, — it is always the promisor at whom our words are pointing. But the general language of Roman law takes a different turn ; it always regards the contract, if we may so speak, from the point of view of the promisee ; in speaking of a party to a contract, it is always the Stipulator, the person who 880 THE LITERAL CONTRACT. chap. ix. asks the question, who is primarily alluded to. But the serviceableness of the stipulation is most vividly illustrated by referring to the actual examples in the pages of the Latin comic dramatists. If the entire scenes are read down in which these passages occur (ex. gra. Plautus, PseudoltiSj Act I. sc. 1 ; Act IV. flc. 6; Trinummfis^ Act V. sc. 2), it will be perceived how effectually the attention of the person meditating the promise must have been arrested by the question, and how ample was the opportunity for withdrawal fipom an improvident undertaking. In the Literal or Written Contract, the formal act by which an Obligation was superinduced on the Con- vention, was an entry of the sum due, where it could be specifically ascertained, on the debit side of a ledger. The explanation of this Contract turns on a point of Roman domestic manners, the systematic character and exceeding regularity of book-keeping in ancient times. There are several minor difficulties of old Roman law, as, for example, the nature of the Slave's Peculium, which are only cleared up when we recollect that a Roman household consisted of a num- ber of persons strictly accountable to its head, and that every single item of domestic receipt and expen- diture, after being entered in waste books, was trans- ferred at stated periods to a general household ledger. There are some obscurities, however, in the descrip- tions we have received of the Literal Contract, the CHAP. IX THE REAL CONTRACT. 381 fact being that the habit of keeping books ceased to be universal in later times, and the expression " Literal Contract," came to signify a form of engage- men^'ehiirely different from that originally under- stood. vVearenotTtnereiore^ m a position to say, ' With respect to the primitive Literal Contract, whether the obligation was created by a simple entry on the part of the creditor, or whether the consent of the debtor or a correspondent entry in his own books was necessary to give it legal effect. The essential point is however established that, in the case of this Con- tract, all formalities were dispensed with on a condi- tion being complied with. This is another step down- wards in the history of contract-law. The Contract which stands next in historical suc- cession, the Real Contract, shows a great advance in ethical conceptions. Whenever any agreement had for its object the delivery of a specific thing — and this is the case with the large majority of simple engage- ments — the Obligation was drawn down as soon^s . the delivery had actually ta ken .place. Such a result must have involved a serious innovation on the oldest ideas of Contract ; for doubtless, in the primitive times, when a contracting party had neglected to clothe his agreement in a stipulation, nothing done in pursuance of the agreement would be recognised by the law. A person who had paid over money on loan would be unable to sue for its repayment unless he had 332 THE CONSENSUAL CONTRACTS. CHAP. IX. r- formally stipulated for it. But, in the Real Con- tract, performance on one side is allowed to impose a legal duty on the other — evidently on ethical grounds. Fn^hf ^^^ ^'^"^ ^hftn mnm] ronaiflpr, at ions appear as an ingredient in Contract-law, and the Real Contract differs from its two predecessors in being founded on these, rather than on respect for technical forms or on deference to Roman domestic habits. We now reach the fourth class, or Consensual Contracts, the most interesting and important of all. Four specified Contracts were distinguished by this name : Mandatum, i. e. Conunission or Agency ; So- cietas or Partnership ; Emtio Venditio or Sale ; and Locatio Conductio or Letting and Hiring. A few pages ago, after stating that a Contract consisted of a hPact or Convention to which an Obligation had been \\ superadded, I spoke of certain acts or formalities by which the law permitted the Obligation to be attracted to the Pact. I used this language on account of the advantage of a general expression, but it is not strictly correct unless it be understood to include the negative as well as the positive. For, in truth, the peculiarity of these Consensual Contracts is that no formalities are required to create them out of the Pact. Much that is indefensible, and much more that is obscure, has been written about the Consensual Contracts, and it has even been asserted that in them CHAP. IX. THE CONSENSUAL CONTRACTS. 333 the consent of the Parties is more emphatically given than in any other species of agreement. But the term Consensual merely indicates that the Obligation . is here annexed at once to the Consensus. The Con- I sensus, or mutual assent of the pariies, isthe final and crowning ingredient in the Convention, and it is the special characteristic of agreements falling under one of the four heads of Sale, Partnership, Agency, and Hiring, that, as soon as the assent of the parties has supplied this ingredient, there is at once a Contract. The Consensus draws with it the Obligation, per- forming, in transactions of the sort specified, the exact functions which are discharged, in the other contracts, by the Res or Thing, by the Verba stipula- tionis, and by the Literce or written entry in a ledger. Consensual is therefore a term which does not involve the slightest anomaly, but is exactly analogous to Real, Verbal, and Literal. In the intercourse of life the commonest and most important of all the contracts are unquestionably the four styled Consensual. The larger part of the col- lective existence of every community is consumed in transactions of buying and selling, of letting and hiring, of alliances between men for purposes of business, of delegation of business from one man to another ; and this is no doubt the consideration which led the Romans, as it has led most societies, to relieve these transactions fipom technical incumbrance, to (n. • 334 THE CONSENSUAL CONTRACTS. chap. ix. abstain as much as possible from clogging the most efficient springs of social movement. Such motives were not of course confined to Rome, and the com- merce of the Romans with their neighbours must have given them abundant opportunities for observing that the contracts before us tended everywhere to become Consenaual^ obligatory on the mere significa- tion of mutual assent. Hence, following their usual / 1 practice, they distinguished these contracts as contracts 1 1 Juris Gentium. Yet I do not think that they were so named at a very early period. The first notions of a Jus Grentium may have been deposited in the minds of the Roman lawyers long before the appoint- ment of a Praetor Peregrinus, but it would only be through extensive and regular trade that they would be familiarised with the contractual system of other Italian communities, and such a trade would scarcely attain considerable proportions before Italy (had been thoroughly pacified, and the supremacy of Rome conclusively assured. Although, however, there is strong probability that the Consensual Con- tracts were the latest-bom into the Roman system, and though it is likely that the qualification, Juris Gentium^ stamps the recency of their origin, yet this very expression, which attributes them to the " Law of Nations," has in modern times produced the notion of their extreme antiquity. For, when the " taw of Nations" had been converted into the "Law of ;i CBAT. IS. THE CONSENSUAL CONTRACTS. 335 Nature," it seemed to be implied that the Consensual Contracts were the type of the agreements most congenial to the natural state ; and hence arose the singular belief that the younger the civilisation, the simpler must be its forms of contract. The Consensual Contracts, it will be observed, were extremely limited in number. But it cannot be doubted that they constituted the stage in the history of Contract-law from which all modem conceptions of contract took their start. The motion of the will which constitutes agreement was now completely insulated, and became the subject of separate con- templation ; forms were entirely eliminated from the notion of contract, and external acts were only regarded as symbols of the internal act of volition. The Consensual Contracts had, moreover, been classed in the Jus Grentium, and it was not long before this classification drew with it the inference that they were the species of agreement which represented the en gagements app roved of by Nature, jond included in her code. This point once reached, we are prepared for several celebrated doctrines and distinctions of the Roman lawyers. One of them is the distinction between N atural and C^y^ ^^ OKIijn^QirinTiQ When a person of full intellectual maturity had deliberately bound himself by an engagement, he was said to be under a natural obligation^ even though he had omitted some necessary formality, and even though \ U) . (.t 4 ( 836 NATURAL AND CIVJL OBLIGATIONS. chap. ix. through some technical impediment he was devoid of the formal capacity for making a valid contract. The law (and this is what the distinction implies) would not enforce the obligation, but it did not absolutely refuse to recognise it ; and natural ohli- gations differed in many respects from obUgations which were merely null and void, more particularly in the circumstance that they could be civilly con- firmed, if the capacity for contract were subsequently acquired. Another very peculiar doctrine of the jurisconsults could not have had its origin earlier than the period at which the Convention was severed from the technical ingredients of Contract. They taught ) that though nothing but a Contract could be the foundation of an action^ a mere Pact or Convention could be the basis of a plea. It followed from this, that though nobody could sue upon an agreement which he had not taken the precaution to mature into a Contract by compljdng with the proper forms, never- theless a claim arising out of a valid contract could be rebutted by proving a counter-agreement which had never got beyond the state of a simple conven- tion. An action for the recovery of a debt could be met by showing a mere informal agreement to waive or postpone the payment. The doctrine just stated indicates the hesitation of the Praetors in making their advances towards the greatest of their innovations. Their theory of Natural CHAF. IX. CHANGES IN CONTRACT-LAW. 337 law must have led them to look with especial favour on the Consensual Contracts and on those Pacts or Con- ventions of which the Consensual Contracts were only particular instances ; but they did not at once venture on extending to all Conventions the liberty of the Consensual Contracts. They took advantage of that special superintendence over procedure which had been confided to them since the first beginnings of Roman law, and, while they still declined to permit a suit to be launched which was not based on a formal contract, they gave full play to their new theory of agreement in directing the ulterior stages of the pro- ceeding. But, when they had proceeded thus far, it was inevitable that they should proceed farther. The revolution of the ancient law of Contract was consummated when the Praetor of some one year announced in his Edict that he would grant equitable actions upon Pacts which had never been matured at all into Contracts, provided only that the Pacts in question had been founded on a consideration (causa). Pacts of this sort are always enforced under the advanced Roman jurisprudence. The principle is merely the principle of the Consensual Contract carried to its proper consequence ; and, in fact, if the technical language of the Romans had been as plastic as their legal theories, these Pacts enforced by the Praetor would have been styled new Contracts, new Consensual Contracts. Legal phraseology is, how- z A 338 PROGRESS OP CONTRACT-LAW. chap. ix. ever, the part of the law which is the last to alter, and the Pacts equitably enforced continued to be designated simply Praetorian ractsJ ft will be !>c- [■^^■ j ^fij^ ■^•^ ^ ^^ . marked that unless there were consideration for the Pact, it would continue nude so far as the new juris- prudence was concerned ; in order to give it effect, it would be necessary to convert it by a stipulation into a Verbal Contract. The extreme importance of this history of Con- tract, as a safeguard against almost innumerable delusions, must be my justification for discussing it at so considerable a length. It gives a complete account of the march of ideas from one great land- mark of jurisprudence to another. We begin with ( IJ? the Nexum, in which a Contract and a Conveyance are blended, and in which the fonnalities which ac- company the agreement are even more important than the agreement itself. From the Nexum we pass ^7^ to the Stipulation, which is a simplified form of the older ceremonial. The Literal Contract comes next, ^ and here all formalities are waived, if proof of the agreement can be supplied from the rigid observances .ij; of a Roman household. In the Real Contract a moral duty is for the first time recognised, and persons who have joined or acquiesced in the partial performance of an engagement are forbidden to repudiate it on account of defects in form. Lastly, the Consensual Contracts emerge, in which the CHAP. IX. PROGRESS OF CONTRACT-LAW. 3^ mental attitude of the contractors is solely regarde d^ and external circumstances have no title to notice except as evidence of the inward undertaking. It is of course uncertain how far this progress of Roman ideas from a gross to a refined conception exemplifies the necessary progress of human thought on the subject of Contract. The Contract-law of all other i ^^ ancient societies but the Roman is either too scanty 11 i r^ jf^ to furnish information, or else is entirely lost ; and modem jurisprudence is so thoroughly leavened with the Roman notions that it furnishes us with no con- trasts or parallels from which instruction can be gleaned. From the absence, however, of everything violent, marvellous, or unintelligible in the changes I have described, it may be reasonably believed that the history of ancient Roman Contracts is, up to a certain point, typical of the history of this class of legal conceptions in other ancient societies. But it is only up to a certain point that the progress of Roman law can be taken to represent the progress of other systems of jurisprudence. The^theoryjof J^a- k tural law is f^xchia lyrly Rnmnn The notion of the | vinculum juris, so far as my knowledge extends, is exclusively Roman. The many peculiarities of the mature Roman law of Contract and Delict which are traceable to these two ideas, whether singly or in combination, are therefore among the exclusive pro- ducts of one particular society. These later legal z 2 340 INFLUENCE OP ROMAN CONTRACT-LAW. chap. ix. conceptions are important, not because they typify the necessary results of advancing thought under all conditions, but because they have exercised perfectly enormous influence on the intellectual diathesis of the modem world. I know nothing more wonderful than the variety of sciences to which Roman law, Roman Contract - law more particularly, has contributed modes of thought, courses of reasoning, and a technical lan- guage. Of the subjects which have whetted the intellectual appetite of the moderns, there is scarcely one, except Physics, which has not been filtered , through Roman jurisprudence. The science of pure Metaphysics had, indeed, rather a Greek than a Roman parentage, but Politics, Moral Philosophy, and even Theology, found in Roman law not only a vehicle of expression, but a nidus in which some of their pro- foundest inquiries were nourished into maturity. For the purpose of accounting for this phenomenon, it is not absolutely necessary to discuss the mysterious relation between words and ideas, or to explain how it is that the human mind has never grappled with any subject of thought, unless it has been provided beforehand with a proper store of language and with an apparatus of appropriate logical methods. It is enough to remark, that, when the philosophical inte- rests of the Eastern and Western worlds were sepa- rated, the founders of Western thought belonged to CHAP. IX. STATE OF THOUGHT IN THE EMPIRE. 341 a society which spoke Latin and reflected in Latin. But in the Western provinces the only language which retained sufficient precision for philosophical purposes was the language of Roman law, which by a singular fortune had preserved nearly all the purity of the Augustan age, while vernacular Latin was degene- rating into a dialect of portentous barbarism. And if Roman jurisprudence supplied the only means of exactness in speech, still more emphatically did it furnish the only means of exactness, subtlety, or depth in thought. For at least three centuries,, philosophy and science were without a home in the West; and though metaphysics and metaphysical theology were engrossing the mental energies of multitudes of Roman subjects, the phraseology em- ployed in these ardent inquiries was exclusively Greek, and their theatre was the Eastern half of the Empire. Sometimes", indeed, the conclusions of the Eastern disputants became so important that every man's assent to them, or dissent from them, had to be re- corded, and then the West was introduced to the results of Eastern controversy, which it generally acquiesced in without interest and without resistance. Meanwhile, one department of inquiry, difficult enough for the most laborious, deep enough for the most subtle, delicate enough for the most refined, had never lost its attractions for the educated classes of the Western provinces. To the cultivated citizen X 8 h 342 EASTERN AND WESTERN IDEAS. chap. ix. of Africa, of Spain, of Gaul, and of Northern Italy, it was jurisprudence, and jurisprudence only, which ; stood in the place of poetry and history, of philosophy I and science. So far then from their being anything mysterious in the palpably legal complexion of the eariiest efforts of Western thought it would rather be astonishing if it had assumed any other hue. I can only express my surprise at the scantiness of the at- tention which has been given to the difference between Western ideas and Eastern, between Western theology and Eastern, caused by the presence of a new ingre- dient. It is precisely because the influence of juris- prudence begins to be powerful that the foundation of Constantinople and the subsequent separation of the Western Empire from the Eastern, are epochs in philosophical history. But continental thinkers are doubtless less capable of appreciating the importance of this crisis by the very intimacy with which notions derived from Roman Law are mingled up with their everyday ideas. Englishmen, on the other hand, are blind to it through the monstrous ignorance to which they condemn themselves of the most plentiful source I of the stream of modem knowledge, of the one intel- \ lectual result of the Roman civilisation. At the same time, an Englishman, who will be at the pains to familiarise himself with the classical Roman law, is perhaps, from the very slightness of the interest which his countrymen have hitherto taken in the mmmmm^mm CHAP. IX. QUASI-CONTRACT. 343 subject, a better judge than a Frenchman or a Ger- man of the value of the assertions I have ventured to make. Anybody who knows what Roman jurispru- dence is, as actually practised by the Romans, and who will observe in what characteristics the earliest Western theology and philosophy differ from the phases of thought which preceded them, may be safely left to pronounce what was the new element which had begun to pervade and govern speculation. The part of Roman law which has had most exten- sive influence on foreign subjects of inquiry has been the law of Obligation, or what comes nearly to the same thing, of Contract and Delict. The Romans themselves were not unaware of the offices which the copious and malleable terminology belonging to this part of their system might be made to discharge, and this is proved by their employment of the peculiar adjunct qiiasi in such expressions as Quasi-Contract and Quasi-Delict. " Quasi," so used, is exclusively a term of classification. It has been usual with English critics to identify the Quasi-contracts with implied contracts, but this * is an error, for implied contracts are true contracts, which quasi-contracts are not. In implied contracts, acts and circum- stances are the symbols of the same ingredients which are symbolised, in express contracts, by words; and whether a man employs one set of symbols or the other must be a matter of indiffer- z 4 111 344 QUAJ3I-C0NTRACT. CBAP. IX. V ( » ( r '-* • 3 u V- s ence so far as concerns the theory of agreement. But a Quasi-Contract is not a contract at all. The commonest sample of the class is the relation sub- sisting between two persons one of whom has paid money to the other through mistake. The law, consulting the interests of morality, imposes an obli- gation on the receiver to refund, but the very nature of the transaction indicates that it is not a contract^ inasmuch as the Convention, the most essential ingre- dient of Contract, is wanting. This word " quasi," prefixed to a term of Roman law, implies that the conception to which it serves as an index is con- nected with the conception with which the com- parison is instituted by a strong superficial analogy or resemblance. It does not denote that the two conceptions are the same or that they belong to the same genus. On the contrary, it negatives the notion of an identity between them ; but it points out that they are sufficiently similar for one to be classed as the sequel to the other, and that the phraseology taken from one department of law may be transferred to the other, and employed without violent straining in the statement of rules which would otherwise be imperfectly expressed. It has been shrewdly remarked, that the con- fusion between Implied Contracts, which are true contracts, and Quasi Contracts, which are not con- tracts at all, has much in common with the famous CHAP. IX. THE SOCIAL COMPACT. 345 error which attributed political rights and duties to an Original Compact between the governed and the governor. Long before this theory had clothed itself in definite shape, the phraseology of Roman contract-law had been largely drawn upon to de- scribe that reciprocity of rights and duties which men had always conceived as existing between sovereigns and subjects. While the world was full of maxims setting forth with the utmost positiveness the claims of kings to implicit obedience — maxims which pretended to have had their origin in the New Testament, but which were really derived from indelible recollections of the CaBsarian despotism — the consciousness of correlative rights possessed by the governed would have been entirely without the means of expression if the Roman law of Obligation had not supplied a language capable of shadowing forth an idea which was as yet imperfectly de- veloped. The antagonism between the privileges of kings and their duties to their subjects was never, I believe, lost sight of since Western history began, but it had interest for few except speculative writers so long as feudalism continued in vigour, for feudal- ism effectually controlled by express customs the exorbitant theoretical pretensions of most European sovereigns. It is notorious, however, that as soon as the decay of the Feudal System had thrown the me- diaeval constitutions out of working order, and when 346 POLITICS AND ROMAN LAW. CHAP. IX. I r r~ ^ 'the Reformation had discredited the authority of the. Pope, the doctrine of the divine right of Kings rose immediately into an importance which had never before attended it. The vogue which it obtained fen- tailed still more constant. resort to the phraseology of Roman law, and a controversy which had originally worn a theological aspect assumed more and more the air of a legal disputation. A phenomenon then appeared which has repeatedly shown itself in the history of opinion. Just when the argument for monarchical authority rounded itself into the definite doctrine of Filmer, the phraseology, borrowed from the Law of Contract, which had been used in defence of the rights of subjects, crystallised into the theory of an actual original compact between king and people, a theory which, first in English and afterwards, and more particularly, in French hands, expanded into a comprehensive explanation of all the pheno- mena of society and law. But the only real connec- tion between political and legal science had consisted in the last giving to the first the benefit of its pecu- liarly plastic terminology. The Roman jurispru- dence of Contract had performed for the relation of sovereign and subject precisely the same service which, in a humbler sphere, it rendered to the rela- tion of persons bound together by an obligation of " quasi-contract." It had furnished a body of words and phrases which approximated with sufficient CHAP. IX. ETHICS AND ROMAN LAW 347 accuracy to the ideas which then were from time to time forming on the subject of political obligation. The doctrine of an Original Compact can never be put higher than it is placed by Dr. Whewell, when he suggests that, though unsound, " it may be a conve nient form for the expression of moral truths." The extensive employment of legal language on political subjects previously to the invention of the Ori^Ti^l f|nmpQ,f>|^ and the powerful influence which that assumption has exercised subsequently, amply account for the plentifulness in political science of words and conceptions, which were the exclusive creation of Roman jurisprudence. Of their plentiful- ness in Moral Philosophy a rather dififererit explana- tion must be given, inasmuch as ethical writings have laid Roman law under contribution much more directly than political speculations, and their authors have been much more conscious of the extent of their obligation. In speaking of moral philosophy as extraordinarily indebted to Roman jurisprudence, I must be understood to intend moral philosophy as understood previously to the break in its history effected by Kant, that is, as the science of the rules governing human conduct, of their proper interpre- tation and of the limitations to which they are subject. Since the rise of the Critical Philosophy, moral science has almost wholly lost its older mean- ing, and, except where it is preserved under a debased :il 348 ETHICS AND ROMAN LAW. CHAP. IX. w ^ form in the casuistry stiU cultivated by Roman Catholic theologians, it seems to be regarded nearly universally as a branch of ontological inquiry. I do not know that there is a single contemporary English writer, with the exception of Dr. Whewell, who un- derstands moral philosophy as it was understood before it was absorbed by metaphysics and before the groundwork of its rules came to be a more important consideration than the rules themselves. So long, however, as ethical science had to do with the practical regimen of conduct, it was more or less saturated with Roman law. Like all the great subjects of modem thought, it was originally incor- porated with theology. The science of Moral Theo- logy, as it was at first called, and as it is still designated by the Roman Catholic divines, was un- doubtedly constructed, to the full knowledge of its r authors, by taking principles of conduct from the system of the Church, and by using the language and methods of jurisprudence for their expression and expansion. While this process went on, it was in- evitable that jurisprudence, though merely intended to be the vehicle of thought, should conununicate its colour to the thought itself. The tinge received through contact with legal conceptions is perfectly perceptible in the earliest ethical literature of the modern world, and it is evident, I think, that the Law of Contract, based as it is on the complete reciprocity CHAP. IX. ETHICS AND &OMAN LAW. 349 and indissoluble connection of rights and duties, has acted as a wholesome corrective to the predispositions of writers who, if left to themselves, might have ex- clusively viewed a moral obligation as the public duty of a citizen in the Civitas Dei. But the amount of Roman Law in moral theology becomes sensibly smaller at the time of its cultivation by the great Spanish moralists. Moral theology, developed by the juridical method of doctor commenting on doctor, provided itself with a phraseology of its own, and Aristotelian peculiarities of reasoning and expression, imbibed doubtless in great part from the Disputa- tions on Morals in the academical schools, take the place of that special turn of thought and speech which can never be mistaken by any person conversant with the Roman law. If the credit of the Spanish school of moral theologians had continued, the juridi- cal ingredient in ethical science would have been insignificant, but the use made of their conclusions by the next generation of Roman Catholic writers on these subjects almost entirely destroyed their influence. Moral Theology, degraded in to Casuist ry, lost all inte- rest for the leaders of European speculation ; and the new science of Moral Philosophy, which was entirely in the hands of the Protestants, swerved greatly aside from the path which the moral theologians had fol- lowed. The eflfect was vastly to increase the influence of Roman law on ethical inquiry. 350 MORAL PHniOSOPHY. chap. ix. " Shortly* after the Reformation, we find two great schools of thought dividing this class of subjects between them. ' The most influential of the two was at first the sect or school known to us as the Casuists, all of them in spiritual communion with the Roman Catholic Church, and nearly aU of them affiliated to one or other of her religious orders. On the other side were a body of writers connected with each other by a common intellectual descent from the great author of the treatise De Jure Belli et Pacis^ Hugo Grotius. Almost all of the latter were adherents of the Reformation, and though it cannot be said that they were formerly and avowedly at conflict with the Casuists, the origin and object of their system were nevertheless essentially diflferent from those of Casuistry. It is necessary to call attention to this difierence, because it involves the question of the influence of Roman law on that department of thought with which both systems are concerned. The book of Grotius, though it touches questions of pure Ethics in every page, and though it is the pa- rent immediate or remote of innumerable volumes of formal morality, is not, as is well known, a professed : treatise on Moral Philosophy ; it is an attempt to ^ . W determine the Law of Nature, or Natural Law. Now, without entering upon the question, whether the con- * The passage quoted is transcribed with slight alterations from a paper contributed by the author to the Cambridge Essays for 18d6. CHAP. IX. GROTIUS AND HIS SCHOOL. 351 ception of a Law Natural be not exclusively a crea- tion of the Roman jurisconsults, we may lay down that, even on the admission of Grotius himself, the dicta of the Roman jurisprudence as to what parts of known positive law must be taken to be parts of the Law of Nature, are, if not infallible, to be received at all events with the profoundest respect. Hence the system of Grotius is implicated with Roman law at its very foundation, and this connection rendered inevitable— what the legal training of the writer would perhaps have entailed without it — the free employment in every paragraph of technical phraseo- logy, and of modes of reasoning, defining, and illus- trating, which must sometimes conceal the sense, and almost always the force and cogency, of the argument from the reader who is unfamiliar with the sources whence they have been derived. On the other hand, Casuistry borrows little from Roman law and the views of morality contended for have nothing what- ever in common with the undertaking of Grotius. All that philosophy of right and wrong which has become famous, or infamous, under the name of Casuistry, had its origin in the distinction between Mortal and Venial Sin. A natural anxiety to escape the awful consequences of determining a particular act to be mortally sinful, and a desire, equally intelligible, to assist the Roman Catholic Church in its conflict with Protestantism by disburthening it of an incon- 852 CASUISTRY. c The expression has been used for convenience' sake, but in fact the inspection of ancient codes shows that the law which they exhibit in unusual quantities is not true criminal law. All civilised systems agree in drawing a distinction between offences against the State or Community and offences against the Indi- vidual, and the two classes of injuries, thus kept apart, I may here, without pretending that the terms B B f4ij^ I i I fl 370 CRIMES AND WRONGS. chap. x. have always been employed consistently in jurispru- dence, call C rimes^ and Wrongs, criming and del icta. Now the penal law of ancient communities is not the law of Crimes ; it is the law o f Wrongs, or^ to )use the English technical word, of Tort s, The person il^uSed'proceeds against the wrong-doer by an ordi- nary civil action, and recovers compensation in the shape of money-damages if he succeeds. If the Commentaries of Gaius be opened at the place where the writer treats of the penal jurisprudence founded on the Twelve Tables, it will be seen that at the head of the civil wrongs recognised by the Roman law stood Furtum or Theft. Offences which we are accustomed to regard exclusively as crimes are exclusively treated as torte, and not theft only, but asgajoll and violent robbe rv. are as sociat ed by the jurisconsult with trespass, lib el and sland er. All alike gave rise to an Obligation or vinculum juris^ and were all requited by a payment of money. This peculiarity, however, is most strongly brought out in the consolidated Laws of the Germanic tribes. Without an exception, they describe an immense system of money compensations for homicide, and with few exceptions, as large a scheme of compensa- tions for minor injuries. " Under Anglo-Saxon law," writes Mr. Kemble (Anglo- Saxons ^ i. 177), " a sum was placed on the life of every free man, according to his rank, and a corresponding sum on every wound CHAP. X. WRONGS AND SINS. 371 that could be inflicted on his person, for nearly every injury that could be done to his civil rights, honour or peace; the sum being aggravated according to adventitious circumstances." These compositions are evidently regarded as a valuable source of income ; highly complex rules regulate the title to them and the responsibility for them ; and, as I have already had occasion to state, they often follow a very peculiar line of devolution, if they have not been acquitted at the decease of the person to whom they belong. If therefore the criterion of a delict^ wrong^ or tort be that the person who suflfers it, and not the State, is conceived to be wronged, it may be asserted that in the infancy of jurisprudence the citizen depends for protection against violence or fraud not on the Law of Crime but on the Law of; Tort. Torts then are copiously enlarged upon in primi- tive jurisprudence. It must be added that Sins are known to it also. Of the Teutonic codes it is almost unnecessary to make this assertion, because those codes, in the form in which we have received them, were compiled or recast by Christian legislators. But it is also true that non-christian bodies of archaic law entail penal consequences on certain classes of acts and on certain classes of omissions, as being violations of divine prescriptions and commands. The law administered at Athens by the Senate of Areo- B B 2 S72 CONCEPTION OF CRIME. chap. x. pagus was probably a special religious code, and at Rome, apparently from a very early period, the Pon- tifical jurisprudence punished adultery^ sacrilege and perhaps murder. There were therefore in the Athe- nian and in the Roman States laws punishing sins. There were also laws punishing torts. The concep- tion of ofience against God produced the first class of ordinailces ; the conception of ofience against one*s neighbour produced the second ; but the idea of offence against the State or aggregate community did not at first produce a true criminal jurisprudence. Yet it is not to be supposed that a conception so simple and elementary as that of wrong done to the State was wanting in any primitive society. It seems rather that the very distinctness with which this conception is realised is the true cause which at first prevents the growth of a criminal law. At all events, when the Roman community conceived itself to be injured, the analogy of a personal wrong received was carried out to its consequences with absolute literalness, and the State avenged itself by a single act on the individual wrong-doer. The result was that, in the infancy of the commonwealth, every offence vitally touching its security or its interests was punished by a separate enactment of the legis- lature. And this is the earliest conception of a crimen or Crime — an act involving such high issues that the State, instead of leaving its cognisance CHAP. X. ANCIENT CONCEPTION OF CRIME. 373 to the civil tribunal or the religious court, directed a special law ovjprivilegium against the perpetrator. Every indictment therefore took the form of a bill of pains and penalties, and the trial of a criminal was a proceeding wholly extraordinary, wholly irre- gular, wholly independent of settled rules and fixed conditions. Consequently, both for the reason that the tribunal dispensing justice was the sovereign state itself and also for the reason that no classifi- cation of the acts prescribed or forbidden was pos- sible, there was not at this epoch any Law of crimes, any criminal jurisprudence. The procedure was identical ^th the form, of passing an ordinary statute; it was set in motion by the same persons and conducted with precisely the same solemnities. And it is to be observed that, when a regular criminal law with an apparatus of Courts and officers for its administration had afterwards come into beiY)^, the old procedure, as might be supposed from its conformity with theory, still in strictness remained practicable; and, much as resort to such an expedient was discredited, the people of Rome always retained the power of punishing by a special law oflences against its majesty. The classical scholar does not require to be reminded that in exactly the same manner the Athenian Bill of Pains and Penalties, or eio-ayyiXia, survived the esta- blishment of regular tribunals. It is known too ' B B 3 374 ANCIENT PROCEDURE. CHAP. X* / A- i / that when the freemen of the Teutonic races assem- bled for legislation, they also claimed authority to punish offences of peculiar blackness or perpetrated by criminals of exalted station. Of this nature was the criminal jurisdiction of the Anglo-Saxon Witen- agemot. It may be thought that the difference which I have asserted to exist between the ancient and modem view of penal law has only a verbal existence. The community, it may be said, besides inter- posing to punish crimes legislatively, has from the earliest times interfered by its tribunals to compel the wrong-doer to compound for his wrong, and, if it does this, it must always have supposed that in some way it was injured through his offence. But, however rigorous this inference may seem to us now-a-days, it is very doubtful whether it was actually drawn by the men of primitive antiquity. How little the notion of injury to the community had to do with the earliest interferences of the State through its tribunal, is shown by the curious circum- stances that in the original administration of justice, the proceedings were a close imitation of the series of acts which were likely to be gone through in private life by persons who were disputing, but who afterwards suffered their quarrel to be appeased. The magistrate carefully simulated the demeanour of a private arbitrator casually called in. . CHAP. X. THE ROMAN LEGIS ACTIO. 375 In order to show that this statement is not a mere fanciful conceit, I will produce the evidence on which it rests. Very far the most ancient judicial proceeding known to us is the Legis Actio Sacra- menti of the Romans, out of which all the later Roman Law of Actions may be proved to have grown. Gains carefuUy describes its ceremonial. Unmeaning and grotesque as it appears at first sight, a little attention enables us to decipher and interpret it. The subject of litigation is supposed to be in Court. If it is moveable, it is actually there. If it be immoveable, a fragment or sample of it is brought in its place; land, for instance, is represented by a clod, a house by a single brick. In the example selected by Gaius, the suit is for a slave. The pro- ceeding begins by the plaintiff's advancing with a rod, which, as Gaius expressly tells, symbolised a spear. He lays hold of the slave and asserts a right to him with the words, " Hunc ego hominem ex Jure Quiritium meum esse dico secundum suam causam sicutdixi; " and then saying, " Ecce tibi Vindictam im- posuiy^ he touches him with the spear. The de- fendant goes through the same series of acts and gestures. On this the Praetor intervenes, and bids the litigants relax their hold, ^^ Mittite ambo ho- minemr They obey, and the plaintiff demands from the defendant the reason of his interference, "P(?5- D B 4 876 MEANING OF THE LEGIS ACTIO. chap. x. tido anne dicas qud ex causA vindicaveris^^* a question which is replied to by a fresh assertion of right, " Jus peregi sicut vindictam imposui. On this, the first claimant offers to stake a sum of money, called a Sacramentum, on the justice of his own case, " Quando tu injurid provocasti^ D ceris Sacramento te I provoco^^^ and the defendant, in the phrase " Similiter ego te" accepts the wager. The subsequent proceed- ings were no longer of a formal kind, but it is to be observed that the Prsetor took security for the Sacramentum, which always went into the coffers of the State. J Such was the necessary preface of every ancient Roman suit. It is impossible, I think, to refuse assent to the suggestion of those who see in it a dramatization of the Origin of Justice. Two armed men are wrangling about some disputed property. I The Praetor, vir pietate gravis ^ happens to be going I by, and interposes to stop the contest. The dis- putants state their case to him, and agree that he shall arbitrate between them, it being arranged that the loser, besides resigning the subject of the quarrel, shall pay a sum of money to the umpire as remuneration for his trouble and loss of time. This interpretation would be less plausible than it is, were it not that, by a surprising coincidence, the ceremony described by Gains as the imperative course of proceeding in a Legis Actio is substantially CHAP. X. ANaENT SUIT IN HOMER. 377 the same with one of the two subjects which the God Hephsestus is described by Homer as moulding into the First Compartment of the Shield of Achilles. In the Homeric trial-scene, the dispute, as if ex- pressly intended to bring out the characteristics of of primitive society, is not about property but about the composition for a homicide. One person asserts that he has paid it, the other that he has never received it. The point of detail, however, which stamps the picture as the counterpart of the archaic Roman practice is the reward designed for the judges. Two talents of gold lie in the middle, to be given to him who shall explain the grounds of the decision most to the satisfaction of the audience. The magnitude of this sum as compared with the trifling amount of the Sacramentum seems to me indicative of the indifference between fluctuating usage and usage consolidated into law. The scene introduced by the poet as a striking and character- istic, but still only occasional, feature of city-life in the heroic age has stiffened, at the opening of the history of civil process, into the regular, ordinary formalities of a lawsuit. It is natural therefore that in the Legis Actio the remuneration of the Judge should be reduced to a reasonable sum, and that, instead of being adjudged to one of a number of arbitrators by popular acclamation, it should be paid as a matter of course to the State which the Prator 378 ANCIENT VIEW OF PROCEDURE. chap. x. represents. But that the incidents described so vividly by Homer, and by Gains with even more than the usual crudity of technical language, have substantially the same meaning, I cannot doubt; and, in confirmation of this view it may be added that many observers of the earliest judicial usages of modem Europe have remarked that the fines inflicted by Courts on ofienders were originally sctcramenta. The State did not take from the defendant a composition for any wrong supposed to be done to itself, but claimed a share in the compensation awarded to the plaintiff simply as the fair price of its time and trouble. Mr. Kemble, expressly assigns this character to the Anglo-Saxon bannum or fredum. Ancient law furnishes other proofs that the earliest administrators of justice simulated the probable acts of persons engaged in a private quarrel. In settling the damages to be awarded, they took as their guide the measure of vengeance likely to be exacted by an aggrieved person under the circumstances of the case. This is the true explanation of the very dif- ferent penalties imposed by ancient law on offenders caught in the act or soon after it and on offenders detected after considerable delay. Some strange ex- emplifications of this peculiarity are supplied by the old Roman law of Theft. The Laws of the Twelve Tables seem to have divided Thefts into Manifest and CHAr. X. OLD ROMAN LAW OF THEFT. 379 Oo . Non-Manifest, and to have allottjed extraordinarily different penalties to the offence according as it fell under one head or the other. The Manifest Thief (Jj was he who was caught within the house in which he had been pilfering, or who was taken while making off to a place of safety with the stolen goods ; the Twelve Tables condemned him to be put to death if he were already a slave, and, if he was a freeman, they made him the bondsman of the owner of the pro- perty. The Non-Manifest Thief was he who was detected under any other circumstances than those described ; and the old code simply directed that an offender of this sort should refund dpuble the value of what he had stolen. In Gaius's day the excessive * severity of the Twelve Tables to the Manifest Thief had naturally been much mitigated, but the law still / maintained the old principle by mulcting him in fourfold the value of the stolen goods, . while the Non- Manifest Thief still continued to pay merely the double. The ancient lawgiver doubtless considered that the injured proprietor, if left to himself, would inflict a very different punishment when his blood was hot from that with which he would be satisfied when the Thief was detected after a considerable interval; and to this calculation the legal scale of penalties was adjusted. The principle is precisely I the same as that followed in the Anglo-Saxon and other Germanic codes, when they suffer a thief chased 880 ANCIENT MEASURE OF PUNISHMENT, chap. x. down and caught with the booty to be hanged or decapitated on the spot, while they exact the full penalties of homicide from anybody who kills him after the pursuit has been intermitted. These archaic distinctions bring home to us very forcibly the distance of a refined from a rude jurisprudence. The modem administrator of justice has confessedly one of his hardest tasks before him when he under- takes to discriminate between the degrees of crimin- ality which belong to offences falling within the same technical description. It is always easy to say that a man is guilty of manslaughter, larceny, or bigamy, but it is often most difficult to pronounce what extent of moral guilt he has incurred, and conse- quently what measure of punishment he has deserved. J There is hardly any perplexity in casuistry, or in the analysis of motive, which we may not be called upon to confront, if we attempt to settle such a point with precision ; and accordingly the law of our day shows an increasing tendency to abstain as much as pos- sible from laying down positive rules on the subject. In France, the jury is left to decide whether the offence which it finds committed has been attended by extenuating circumstances; in England, a nearly unbounded latitude in the selection of punishments is now allowed to the judge ; while all States have in reserve an ultimate remedy for the miscarriages of law in the Prerogative of Pardon, universally lodged with CHAP. X. TRUE CRIMINAL JURISPRUDENCE. 381 the Chief Magistrate. It is curious to observe how little the men of primitive times were troubled with these scruples, how completely they were persuaded that the impulses of the injured person were the proper measure of the vengeance he was entitled to exact, and how literally they imitated the probable rise and fall of his passions in fixing their scale of punish- ment. I wish it could be said that their method of legislation is quite extinct. There are, however, several modem systems of law which, in cases of graver wrong, admit the fact of the wrong doer having been taken the act to be pleaded in justification of inordinate punishment inflicted on him by the suflFerer — an indulgence which, though superficially regarded it may seem intelligible, is based, as it seems to me, on a very low morality. Nothing, I have said, can be simpler than the con- siderations which ultimately led ancient societies to the formation of a true criminal jurisprudence. The State conceived itself to be wronged, and the Popular Assembly struck straight at the offender with the same movement which accompanied its legislative action. It is fiirther true of the ancient world — though not precisely of the modem, as I shall have a occasion to point out — that the earliest criminal tribunals were merely subdivisions, or committees, of the legislature. This, at all events, is the conclusion pointed at by the legal history of the two great 382 CRIMINAL JURISDICTION OF LEGISLATURE, chaf. x. states of antiquity, with tolerable clearness in one case, and with absolute distinctness in the other. The primitive penal law of Athens entrusted the castigation of offences partly to the Archons, who seem to have punished them as torts^ and partly to (the Senate of Areopagus, which punished them as sins. Both jurisdictions were substantially trans- ferred in the end to the Helisea, the High Court of Popular Justice, and the ftinctions of the Archons and of the Areopagus became either merely minis- terial or quite insignificant. But "Helisea" is only an old word for Assembly; the HelisBa of classical times was simply the Popular Assembly convened for judicial purposes, and the famous Dikasteries of Athens were only its subdivisions or panels. The corresponding changes which occurred at Rome are still more easily interpreted, because the Romans confined their experiments to the penal law, and did not, like the Athenians, construct popular courts with a civil as well as a criminal jurisdiction. The history of Roman criminal jurisprudence begins with the old Judicia Populi, at which the Kings are said to have presided. These were simply solemn trials of great offenders under legislative forms. It seems, however, 4ihat from an early period the Comitia had occasionally delegated its criminal jurisdiction to a I Quaestio or Commission, which bore much the same I relation to the Assembly which a Committee of the CBir. z. THE QU^STIONES. 383 House of Commons bears to the House itself, except that the Roman Commissioners or Quaestores did not merely report to the Comitia, but exercised all powers which that body was itself in the habit of exercising, even to the passing sentence on the Accused. A QuaBStio of this sort was only appointed to try a par- ticular offender, but there was nothing to prevent two or three Quaestiones sitting at the same time; and it is probable that several of them were ap- pointed simultaneously, when several grave cases of wrong to the community had occurred together. There are also indications that now and then these Quaestiones approached the character of our Standing Committees, in that they were appointed periodi- cally, and without waiting for occasion to arise in the commission of some serious crime. The old Quaestores Parricidii, who are mentioned in connec- tion with transactions of very ancient date, as being deputed to try (or, as some take it, to search out and try) all cases of parricide and murder, seem to have been appointed regularly every year ; and the Duumviri Perduellionis, or Conunission of Two for trial of violent injury to the Commonwealth, are also believed by most writers to have been named pe- riodically. The delegations of power to these latter functionaries bring us some way forwards. Instead of being appointed when and as state-offences were committed, they had a general, though a temporary 1 I 894 QU-iJSTIONES PERPETUiE. CHAP. T. / (t «-'V it, jurisdiction over such as might be perpetrated. Our proximity to a regular criminal jurisprudence is also indicated by the general terms " Parricidium" and " Perduellio," which mark the approach to some- thing like a classification of crimes. The true criminal law did not however come into existence till the year B.C. 149, when L. Calpumius Piso carried the statute known as the Lex Calpumia de Repetundis. The law applied to cases Repetun- darum Pecuniarum, that is, claims by Provincials to recover monies improperly received by a Governor- General, but the great and permanent importance of this statute arose from its establishing the first Quo^stio Perpetua. A Quaestio Perpetua was a Permanent Commission as opposed to those which were occasional and to those which were temporary. It was a re- gular criminal tribunal, whose existence dated from the passing of the statute creating it and continued till another statute should pass abolishing it. Its members were not specially nominated, as were the members of the older QuaBStiones, but provision was made in the law constituting it for selecting from particular classes the judges who were to offi- ciate, and for renewing them in conformity with definite rules. The ofi^ences of which it took cog- nisance were also expressly named and defined in this statute, and the new Quaestio had authority to try and sentence all persons in future whose acts CHAP. X. mSTORY OP CRIMINAL LAW. ZS5 should fall under the definitions of crime supplied by the law. It was therefore a regular criminal judica- ture, administering a true criminal jurisprudence. tL primitive hbtor^ of criminal law divides itself therefore into four stages. Understanding that the conception of Crime^ as distinguished from that of Wrong or Tort and from that of Sin^ involves the idea of injury to the State or collective community, we first find that the commonwealth, in literal conformity with the conception, itself interposed directly, and by isolated acts, to avenge itself on the author of the evil which it had suffered. This is the point from which we start ; each indictment is now a bill of pains and penalties, a special law naming the criminal and prescribing his punishment. A second step is accomplished, when the multiplicity of crimes compels the legislature to delegate its powers to particular Qusestiones or Commissions, each of which is deputed to investigate a particular accusation, and if it be proved, to punish the particular offender. Yet another movement is made when the Legislature, instead of waiting for the alleged commission of a crime as the occasion of appointing a Qusestio, periodi- cially nominates Commissioners like the Quaestores Parricidii and the Duumviri Perduellionis, on the chance of certain classes of crimes being committed, and in the expectation that they will be perpetrated. The last stage is reached when the QusDStiones c c ^'; "J i 886 THE QU-ESTIONES PERPETQ-ZE. chaf. x. from being periodical or occasional become permanent Benches or Chambers — when the judges, instead of being named in the particular law nominating the Commission, are directed to be chosen through all future time in a particular way and from a particular class — and when certain acts are described in general language and declared to be crimes, to be visited, in the event of their perpetration, with specified penal- ties appropriated to each description. If the Quaestiones PerpetuaB had had a longer his- tory, they would doubtless have come to be regarded as a distinct institution, and their relation to the Comitia would have seemed no closer than the connec- tion of our own Courts of Law with the Sovereign, who is theoretically the fountain of justice. But the Imperial despotism destroyed them before their origin had been completely forgotten, and, so long as they lasted, these Permanent Commissions were looked upon by the Romans as the mere depositaries of a delegated power. The cognisance of crimes was considered a natural attribute of the lesislature, and the mind of the citizen never ceased to be carried back from the Quaestiones to the Comitia which had deputed them to put into exercise some of its own inalienable functions. The view which regarded the Quaestiones, even when they became permanent, as mere Committees of the Popular Assembly — as bodies which only ministered to a higher authority CHAP. X. THEORY OF THE QU^STIONES. 3S7 — had some important legal consequenees which left their mark on the criminal law to the very latest period. One immediate result was that the Comitia continued to exercise criminal jurisdiction by way of bill of pains and penalties, long after the Qusestiones had been established. Though the legislature had consented to delegate its powers for the sake of con- venience to bodies external to itself, it did not follow that it surrendered them. The Comitia and the QusBStiones went on trying and punishing offenders side by side; and, any unusual outburst of popular I ^"^^^l^r^^ indignation was sure, until the extinction of the fl — ^ Republic, to call down upon its object an indictment II before the Assembly of the Tribes. \ One of the most remarkable peculiarities of the institutions of the Republic is also traceable to this dependance of the Quaestiones on the Comitia. The disappearance of the punishment of Death from the penal system of Republican Rome used to be a very favourite topic with the writers of the last century, who were perpetually using it to point some theory of the Roman character or of modem social economy. The reason which can be confidently assigned for it stamps it as purely fortuitous. Of the three forms which the Roman legislature successively assumed, one, it is well known — the Comitia Centuriata — was exclusively taken to represent the State as embodied for military operations. The Assembly of the Cen- c c 2 i 388 PUNISHMENT OF DEATH. CHAP. X. V^^ l V A L turies, therefore, had all powers which may be sup- posed to be properly lodged with a General com- manding an army, and, among them, it had authority to subject all offenders to the same correction to which a soldier rendered himself liable by breaches of discipline. The Comitia Centuriata could there- fore inflict capital punishment. Not so, however, the Comitia Curiata or Comitia Tributa. They were fettered on this point by the sacredness with which the person of a Roman citizen, inside the walls of the city, was invested by religion and law; and, with respect to the last of them, the Comitia Tributa, we know for certain that it became a fixed principle that ( the Assembly of the Tribes could at most impose a jl fine. So long as criminal jurisdiction was confined to the legislature, and so long as the assemblies of the Centuries and of the Tribes continued to exercise co-ordinate powers, it was easy to prefer indictments for graver crimes before the legislative body which dispensed the heavier penalties ; but then it happened that the more democratic assembly, that of the Tribes, almost entirely superseded the others, and became the ordinary legislature of the later Republic. Now the decline of the Republic was exactly the period during which the Quaestiones Pepetuse were esta- blished, so that the statutes creating them were all passed by a legislative assembly which itself could not, at its ordinary sittings, punish a criminal with CHAP. X. PUNISHMENT OP DEATH. 889 death. It followed that the Permanent Judicial Com- missions, holding a delegated authority, were cir- cumscribed in their attributes and capacities by the limits of the powers residing with the body which deputed thera. They could do nothing which the Assembly of the Tribes could not have done ; and, as the Assembly could not sentence to death, the Quaestiones were equally incompetent to award capital punishment. The anomaly thus result- ing was not viewed in ancient times with anything like the favour which it has attracted among the modems, and indeed, while it is questionable whether the Roman character was at all the better for it, it is certain that the Roman Constitution was a great deal the worse. Like every other institution which has accompanied the human race down the current of its history, the punishment of death is a necessity of society in certain stages of the civilising process. There is a time when the attempt to dispense with it baulks both of the two great instincts which lie at the root of all penal law. Without it, the commu- nity neither feels that it is sufficiently revenged on the criminal, nor thinks that the example of his punishment is adequate to deter others from imitating him. The incompetence of the Roman Tribunals to pass sentence of death led distinctly and ^ directly to those frightful Revolutionary intervals, known as the Proscriptions, during which all law was cc 3 390 RESULTS TRACEABLE TO THE QU-ESTIONES. ch. i \\ formally suspended simply because party violence could find no other avenue to the vengeance for which it was thirsting. No cause contributed so powerfully to the decay of political capacity in the Roman people as this periodical abeyance of the laws; and, when it had once been resorted to, we need not hesitate to assert that the ruin of Roman liberty became merely a question of time. If the practice of the Tribunals had afforded an adequate vent for popular passion, the forms of judicial pro- cedure would no doubt have been as flagrantly per- verted as with us in the reigns of the later Stuarts, but national character would not have suffered as deeply as it did, nor would the stability of Roman institutions have been as seriously enfeebled. I will mention two more singularities of the Roman Criminal System which were produced by the same theory of judicial authority. They are, the extreme multiplicity of the Roman criminal tri- bunals, and the capricious and anomalous classifica- tion of crimes which characterised Roman penal jurisprudence throughout its entire history. Every Quoestio^ it has been said, whether Perpetual or other- wise, had its origin in a distinct statute* From the law which created it, it derived its authority; it rigorously observed the limits which its charter prescribed to it, and touched no form of criminality which that charter did not expressly define. As CH. X. RESULTS TRACEABLE TO THE QU^STIONES. 891 then the statutes which constituted the various QuaBstiones were all called forth by particular emer- gencies, each of them being in fact passed to punish a class of acts which the circumstances of the time rendered particularly odious or particulariy dan- gerous, these enactments made not the slightest reference to each other, and were connected by no common principle. Twenty or thirty different cri- minal laws were in existence together, with exactly the same number of Qusestiones to administer them ; nor was any attempt made during the Republic to fuse these distinct judicial bodies into one, or to give symmetry to the provisions of the statutes which appointed them and defined their duties. The state of the Roman criminal jurisdiction at this period, exhibited some resemblances to the administration of civU remedies in England at the time when the English Courts of Common Law had not as yet introduced those fictitious averments into thtir writs which enabled them to trespass on each other's peculiar province. Like the QusBstiones, the Courts of Queen's Bench, Common Pleas, and Exchequer, were all theoretical emanations from a higher autho- rity, and each entertained a special class of cases supposed to be committed to it by the fountain of its jurisdiction; but then the Roman Quaestiones were many more than three in number, and it was infinitely less easy to discriminate the acts which fell under c c 4 392 TRIAL BY THE QU^STIONES. chap. x. the cognisance of each Quajstio, than to distinguish between the provinces of the three Courts in West- minster Hall. The difficulty of drawing exact lines between the spheres of the different Quaestiones made the multiplicity of Roman tribunals something more than a mere inconvenience ; for we read with astonish- ment that when it was not immediately clear under what general description a man's alleged offences ranged themselves, he might be indicted at once or successively before several different Commissions, on the chance of some one of them declaring itself competent to convict him ; and, although conviction by one Qusestio ousted the jurisdiction of the rest, acquittal by one of them could not be pleaded to an accusation before another. This was direcdy con- trary to the rule of the Roman civil law ; and we may be sure that a people so sensitive as the Romans to anomalies (or, as their significant phrase was, to inelegancies) in jurisprudence, would not long have tolerated it, had not the melancholy history of the QuflBstiones caused them to be regarded much more as temporary weapons in the hands of factions than as permanent institutions for the correction of crime. The Emperors soon abolished this multiplicity and conflict of jurisdiction ; but it is remarkable that they did not remove another singularity of the criminal law which stands in close connection with the number of the Courts. The classifications of crimes which CHAP. X. CLASSIFICATIONS OF CRIMES. 393 are contained even in the Corpus Juris of Justinian are remarkably capricious. Each QusBstio had, in fact, confined itself to the crimes committed to its cognisance by its charter. These crimes, however were only classed together in the original statute because they happened to call simultaneously for castigation at the moment of passing it. They had not therefore anjrthing necessarily in common ; but the fact of their constituting the particular subject- matter of trials before a particular Qusestio impressed itself naturally on the public attention, and so in- veterate did the association become between the offences mentioned in the same statute that, even when formal attempts were made by Sylla and by the Emperor Augustus to consolidate the Roman criminal law, the legislator preserved the old group- ing. The Statutes of Sylla and Augustus were the foundation of the penal jurisprudence of the Empire, and nothing can be more extraordinary than some of the classifications which they bequeathed to it. I need only give a single example in the fiict that perjury was always classed with cutting and wounding and with poisoning^ no doubt because a law of Sylla, the Lex Cornelia de Sicariis et Veneficis, had given jurisdiction over all these three forms of crime to the same Permanent Commission. It seems too that this capricious grouping of crimes affected the ver- nacular speech of the Romans. People naturally I \ 394 LATER LAW OF CRIMES. cha». x. fell into the habit of designating all the offences enu- merated in one law by the first name on the list, which doubtless gave its style to the Law Court deputed to try them all. All the offences tried by the QuaBstio De Adulteriis would thus be called Adultery. I have dwelt on the history and characteristics of the Roman Quaastiones because the formation of a criminal jurisprudence is nowhere else so instruc- tively exemplified. The last Qusestiones were added by the Emperor Augustus, and from that time the Romans may be said to have had a tolerably com- plete criminal law. Concurrently with its growth, the analogous process had gone on, which I have cal led the conve r sion of Wrongs into Cid mes, for, though the Roman legislature did not extinguish the civil remedy for the more heinous offences, it offered the sufferer a redress which he was sure to prefer. Still, even after Augustus had completed his legis- lation, several offences continued to be regarded as Wrongs, which modem societies look upon exclu- sively as Crimes; nor did they become criminally punishable till some late but uncertain date, at which the law began to take notice of a new de- scription of offences called in the Digest crimina extraordinaria. These were doubtless a class of acts which the theory of Roman jurisprudence treated merely as wrongs; but the growing sense of the CHAP. X. LATER LAW OF CRIMES. 395 majesty of society revolted from their entailing no- thing worse on their perpetrator than the payment of money damages, and accordingly the injured person seems to have been permitted, if he pleased, to pursue them as crimes extra ordinem^ that is by a mode of redress departing in some respect or other from the ordinary procedure. From the period at which these crimina extraordinaria were first recog- nised, the list of crimes in the Roman State must have been as long as in any community of the modern world. It is unnecessary to describe with any minuteness the mode of administering criminal justice under the Koman Empire, but it is to be noted that both its theory and practice have had powerful effect on modem society. The Emperors did not immediately abolish the Quaastiones, and at first they committed an extensive criminal jurisdiction to the Senate, in which, however servile it might show itself in fact, the Emperor was no more nominally than a Senator like the rest. But some sort of collateral criminal jurisdiction had been claimed by the Prince from the first ; and this, as recollections of the free common- wealth decayed, tended steadily to gain at the ex- pense of the old tribunals. Gradually the punish- ment of crimes was transferred to magistrates directly nominated by the Emperor and the pri- vileges of the Senate passed to the Imperial Privy 396 SOVEREIGN THE FOUNTAIN OP JUSTICE, chap. x. Council, which also became a Court of ultimate criminal appeal. Under these influences the doc- trine, famiUar to the modems, insensibly shaped itself that the Sovereign is the fountain of all Justice and the depositary of all Grace. It was not so much the fruit of increasing adulation and servility as of the centralisation of the Empire which had by this time perfected itself. The theory of criminal justice had, in fact, worked round almost to the point from which it started. It had begun in the belief that it was the business of the collective community to avenge its own wrongs by its own hand; and it ended in the doctrine that the chastisement of crimes belonged in an especial manner to the Sovereign as representative and mandatary of his people. The new view differed from the old one chiefly in the air of awfulness and majesty which the guardianship of justice appeared to throw around the person of the Sovereign. This later Roman view of the Sovereign's relation to justice certainly assisted in saving modem societies from the necessity of travelling through the series of changes which I have illustrated by the history of the Quaestiones. In the primitive law of almost all the races which have peopled Western Europe there are vestiges of the archaic notion that the punish- ment of crimes belongs to the general assembly of freemen; and there are some States — Scotland is _s cHAP.x. MODERN HISTORY OF CRIMES. 897 said to be one of them— in which the parentage of the existing judicature can be traced up to a Com- mittee of the legislative body. But the development of the criminal law was universaUy hastened by two causes, th e memory of the Roman F.TT^p ^ j^(\ th e influence of the Church. On the one hand traditions of iiie majesty of the Csesars, perpetuated by the temporary ascendency of the House of Charlemagne, were surrounding Sovereigns with a prestige which a mere barbarous chieftain could never otherwise have acquired and were communicating to the pettiest feudal potentate the character of guardian of so- ciety and representative of the State. On the other hand, the Church, in its anxiety to put a curb on sanguinary ferocity, sought about for authority to punish the graver misdeeds, and found it in those passages of Scripture which speak with approval of the powers of punishment committed to the civil ma- gistrate. The New Testament was appealed to as proving that secular rulers exist for the terror of evil-doers; the Old Testament, as laying down that " whoso sheddeth man's blood, by man shall his blood be shed." There can be no doubt, I imagine, that modem ideas on the subject of crime as based upon two assumptions contended for by the Church in the Dark Ages — first, that each feudal ruler, in his de- gree, might be assimilated to the Koman Magistrates spoken of by Saint Paul ; and next, that the oflfences 398 DOCTRINE OF THE CHURCH AS TO CRIMES, ch. x. which he was to chastise were those selected for prohibition in the Mosaic Commandments, or rather such of them as the Church did not reserve to her own cognisance. Heresy, supposed to be included in the First and Second Commandments, Adultery and Perjury were ecclesiastical oflfences, and the Church only admitted the co-operation of the secular arm for the purpose of inflicting severer punishment in cases of extraordinary aggravation. At the same time, she taught that murder and robbery with their various modifications were under the jurisdiction of civil rulers, not as an accident of their position but by the express ordinance of God. There is a passage in the writings of King Alfred (Kemble, ii. 209) which brings out into remarkable clearness the struggle of the various ideas that pre- vailed in his day as to the origin of criminal juris- diction. It will be seen that Alfred attributes it partly to the authority of the Church and partly to that of the Witan, while he expressly claims for treason against the lord the same immunity from ordinary rules which the Roman Law of Majestas had assigned to treason against the Caesar. " After this it happened," he writes, " that many nations received the faith of Christ, and there were many synods assembled throughout the earth, and among the English race also after they had received the faith of Christ, both of holy bishops and of their exalted CH. X. KING ALFRED ON CRIMINAL JURISDICTION. 399 Witan. They then ordained that, out of that mercy which Christ had taught, secular lords, with their leave, might without sin take for every misdeed the bot in money which they ordained ; except in cases of treason against a lord, to which they dared not assign any mercy because Almighty God adjudged none to them that despised Him, nor did Christ adjudge any to them which sold Him to death ; and He commanded that a lord should be loved like Himself." X INDEX \ I INDEX. ADOPTION. Adoption, fiction of, ] SO. — influence of the taera gtnHlieUi on the law ot 6, 7, 27. -^— in Hindoo law, 193. Adprehensio; or assumption of sove- reign power in a newly disco?ered country, 249. JEquitas, the term, 58. See Equity. ^quus, the word, 59. Agnatic and Cognaiie relationship, dif- ference between, 59, 146. Agnation described, 147, 148. Agreement, Roman analysis of, S22. Agri Yectigales, Roman practice of letting out, 300. — ^~ limitrophi of the Romans on the banks of the Rhine and Danube, 502. Alexander the Sixth, Pope, his Bull, 249. Alfred, King, his remarks on criminal jurisdiction quoted, 398. Alienation of property, ancient diffi- culties of, 271. — archaic ceremonies of, 272. Allodial property, of the ancient Ger- mans, 228, 281. America, United States o£^ Declaration of Independence of, 95. Anglo-Saxons, character of their King- ship, 108. — — their law of succession, 280. — their penal law, 370, 374, 379. Archon of Athens, office of the, 1 0. Aristocracies, origin of the rule o( 10. ■ those of Greece, Italy, and Asia Minor, 10. . ■ difference between those of the Eastand West, 11. ■ •listocraciea, the depositaries and administrators of the law, 11,12. BURGUNDIANS. Aristocracies, importance of Judicial, bo- fore the invention of writing, 1 2. — ^ foundation of aristocracies, 132. Aristotle, his <* Treatise on Rhetoric" referred to, 75. Assifmees in Bankruptcy, succession oC 180. Athenian wills, 196. Athens, primitive peiud law of^ 382. Augustus, the Emperor, his alterations in the Roman law, 41, 42. Austin's ** Province of Jurisprudence determined,** referred to, 7. Bayle referred to, 87. Benefices of the invading chiefs of thai Roman Empire, 229. -»— transformation of the Benefice into the hereditary Fief^ 230. Bengalee Wills, 197. Bentham, his *' Fragment on Govern- ment ** referred to, 7. — causes of bis influence in England, 78. — - the Roman counterpart of Ben- thanism, 79. his theory of Jurisprudence, 117. his eulogy of the Bull of Pope Alexander the Sixth, 249. *^~ Bentham and Austin*s rules as to the essentials of a contract, 323. Blackstone, Sir William, his theory of the first principles of law, 114. his justification for the exclusion or the half-blood, 152. his theory of the origin of pro- perty quoted, 251. his theory criticised, 253. Bonorum Possessio of the Romans, 21]. Bracton, his plagiarisms, 82. Burgundians^ the, referred to, 104. v D 2 404 INDEX. CMSAft. Cesar, Julius, his contemplated addi- tioDs to the Roman Statute Law, 42. Capet, Hugh, character of his sove- reignty, 108. Capture In War, sources of the modern Internaiional Law of, 246. — ^— ancient Law of, 247. Caracalla, effect of his constitution in enlarging the Patria Potestas, 144. Casuists, the, 350. comparison of their system with that of Grotius and his school, 351. — origin of Casuistry, 351. ■ blow struck at Casuistry by Pas- cal, 352. Cessio in Jure of Property, in Roman and in English law, 289. Cestui que Trust, special proprietor- ship created for the, 294. Chancellor, the Lord, compared with a Roman Praetor, 64, 65. Chancery, Court of, in England, re- marks on the, 44. — origin of its system, 44, 45. Charlemagne, his claim to universal do- minion, 104. his distribution of Benefices, 229. Children, disinherison of, under the Rotil^ns, 215. China, cause of the arrest of progress in, 25. Churches, Eastern and Western, con- clusions of the East on theological subjects accepted by the West with- out dispute or review, 356. problems of the Western Church, 357. Cicero referred to, 61. his allusions to the ancient Roman Sacra, 193. Code Napol^n, restraints imposed by it on the tesumentary power, 176. Codes, Ancient, 1. sources of knowledge afforded by the Greek Homeric poems, 2. ■ Themistes, 4. Hindoo Laws of Menu, 6. -—-difference between Case-law and Code law, 1 4. ■ era of Codes, 14, — the Twelve Tables, 1, 2, 14. — -^ the Codes of Solon and Draco, 14. ■ importance of Codes to ancient so- cieties, 16 — 19. CONTRACT. Co-emption, or higher form of civil marriage of the ancient Romans, 154. Cognatic relationship described, 146t 147. Co-heirs, rights and duties of, 181. ■ rights of| under the Roman Law, 2S«7. Coloni of the Romans, 231 . — origin and situation of the, 300. Comitia Calata, ancient Roman execu- tion of Wills in the, 199. end of the, 203. Comitia Centuriata, power of the, 387. Curiata, powers of the, 318. Tributa, powers of the, 388. Commentaries of the Roman lawyers, 35. Common law of England, formerly an unwritten law, 13. difference between Case-law and Code law, 14. Case-law and its anomalies, 31. ' similarity between English Case- law and the Respousa Pruden- tum of the Romans, 33. Confarreation, or religious marriage of the ancient Romans, 154. Constantiue, the Emperor, his improve- ments in the Law, 42. — his modification of the Patria Po- testas, 143. Contract, movement of societies from Status to, 170. early history of, 304. Contract and Political Economy, 305. Rousseau*s doctrine of an original Social Contract, 308, 309. Montesquieu's apologue of the Troglodytes, 311. early notions of Contract, 312. — Roman Contracts, 314, '■ specialising process in ancient law, 816. ■■ historical alliance between Con- tracts and Conveyances, 31 7. changes in the Nexum, 318. Executory Contracts of Sale, 321. primitive association of Convey- ances and Contracts, 321. ' ancient and modern ^doctrine of Contracts, 323. -^ the Roman Obligation, 323. — Roman classification of Contracts 325. INDEX. 405 OOKTRACT. Contract* the Verbal Contract, 387. ■ the Literal or Written Contract, 330. the Real Contract, 331. Consensual Contracts, 332. ■ changes in Contract law, 337. — — » history of the progress of Con- tract law, 338. Quasi- Contracts, 343. Contract law and Fiefs, 365. Conveyances, relation of Wills to, under the Ronum law, 204. consequence of this relation, 206. remedies, 207. — ^ historical alliance between Con* tracts and Conveyances, 317. Co-ownership of property, amongst the Hindoos, 260, 261. regarded by the Roman law as ex- ceptional and momentary, 261. Corporations aggregate, 187. sole, leading attribute of, 187. ** Corpus Juris Civilis" of Jusiinian, 68. resorted to by English Chancery judges, 44. Creation, Greek philosophical explana- tion of the bbric of, 55. Creditors, cause of the extravagant powers given to, by ancient laws, 321. Crimes and Wrongs. See Delict and Crime. Croatia, co-ownership of the villagers of, 267. Curatores of male Orphans under the Roman law, 161. Curse, inherited, Greek notion of an, 127. Customary Law, 5. Homeric terms for customs, 5. origin of customary law, 9. •^— epoch of customary law and its custody by a privileged order, 1 3. Cyclops, Homer*s account of, quoted, 124. Death, disappearance of, from the penal system of republican Rome» 387. -^ causes for this, 387, 388. •^— death-punishment a necessity in certain stages of society, 389. Debtors, cause of the severity of ancient laws against, 321. Decretals, forged, motives of the author of the, 82. Delict and Crime, early history of, 367. Penal law in ancient codes, 367. EGYPT. Delict and Crime, Crimes and Wrongs, erimina and deiicteh 370. and Crime, Furtum or Theft of the Roman law, 370, 379. ~^— Wrongs and Sins both known to primitive jurisprudence, 371. difference between the ancient and modem conception of Crime,S73. ■ the Roman Legis Actio Sacra- ment!, 375. — ^ Homer's description of an ancient law-suit, 377. primitive penal law of Athena, 382. — ^ old Roman criminal jurisprudence, 382. the Quaestiones, 382, 383. Quaestores Parricidii, 583. Duumviri Perduellionis, 383. the first true Roman Criminal law, 384, the primitive history of criminal law, 385. > extreme multiplicity of Roman criminal tribunals, 390. ■ capricious classification of crimes, 392, 393. ■ statutes of Sylla and Augustus, 393. later law of crimes, 394. ' .^— crimina eitraordinaria, 394. ^^— mode of administering criminal jus- tice under the Roman Empirci 395. modem history of crimes, 397. King Alfred on criminal jurisdic- tion quotedt 398. Discovery, considered as a mode of ae- quiring dominion, 248. Dominion, its nature, limitation, and mode of securing it, 102. of the Romans, 317. Dower, the principle of, engrafted on the Customary Law of Western Eu- rope, 224. Draco, rudeness of the Code of, 16« ■ penal laws of, 367, Dumoulin referred to^ 86. Dumont's ** Sophismes Anarebiques,** remarks, 92. Duumviri Perduellionis, the, 383. Edict of the Roman Pr«tor, 41, 57, 63, 64, 66, 209, 293. Egypt, Modern, rule of succession to the throne of, 242, D D 3 406 INDEX. ELDOK. Eldon, Lord, hii ChaneeQonbipk 69. £lphinstone*t •• History of India ** quoted, 263. Emphyteiisia, system of, 899) tf ieq, — — rights of the Emphyteuts, 301. Emptor Funilis. See Familise Emptor. England, the Laod-law of, at the pre- sent time, 386. English Common law, formerly an nn* ] written law, 13. — law, hesitation of oar Coarts in declaring principles of, 40. Equality pre-eminence given in France to Natural Law, 85. Rousseau, 87. — the Revolution, 89. Franks, the, referred to, 104. Roman institution of the Patria Potestas not known to the, 143. Freewill and Necessity, question 0^ unknown to the Greeks, 304. Furtum, of Theft, of the Roman Law, 370. Gaius reftnred to, 52. ■ his description of the hist&tution of the Patria Potestas, 133. ■ his information respecting the Per- petual Tutelage of Women, 153. -^— on the duplication of proprietary right, referred to, 295. Galat«,the Patria Potestaii of the, 136. Gens, or House, of the Romans com- pared with the Village Community of India, 264. Gentiles, Roman, their rights h) cases of IntesUte Succession, 221. German jaw of Succession, 280. Germans, Wills of the ancient, 196, 198. -^~ penal laws of the, 367. Patria Potestas of, 143. — primitive property of, 1 98. • the ancient law of allodial pro- perty, 228. " Germany" of Tacitus, its value, 12a —— suspicions as to its Bdelity, 121. —• allodial property of, 281. Greece, aristocracies of, 10. Greek theory of a Lav of Natu)^ 52, 53, Greeks, equality of laws oki which they prided themselves, 58. —^ their tendency to confoond law and iact, 75. their notion df an inherited curse, 127. " assistance afforded by, in the for- mation of the Roman codes, 15. -— — limited Patria Potestas of the^ 136, 137. — metaphysics of the, SOO. lttJlb'0<^ Greeks, their wimt bf dipa^ity fbt pro- ducing a philosophy of law, 854. Grote, Mr., his <« History of Greece," reftrred to, 5, 9. Grotius, Hugo, and hik auctessors on International law, 96. his doetri^Aes, 100. success of his treatise •* De Jure Belli et Pacis,'*lll. his theory of a Natural State Und of a system of ptineiples con- genial to it, 114. ' ■ ' ■ his moral philosophy and that of his school, 350. ■ comparison of his system with that of the Casuists, 351. Guardianship, Perpetual, of Women, under the Roman law, 153. — -^ amongst the Hindoos, 153. — amongst the Scandinavians, 153. Hoereditas, or Inheritance, definition, 181. Heres or Heir, bis tights and duties 181, 190, 227. Half-blood relationship, 151. — the rule according to the customs of Normandy, 151. Haus-Gesetze of Germany, 232. Heirs, rights of, under the Roman Law, 131, 190. 227.^ Highland ehieftunship hereditary, 234. — form of Primogeniture, 240. Hindoo laws of Menu, 6, 17, 1 8. -^— Customary Law, 7. ^^— law of Succession, 280. — > difference between Inheritances and Acquisitioos,281. ■■ Perpetual Tutelage of Women amongst the, 153. •— ^ right amongst the, to inherit a dead man's property, 191. •^— « the Hindoo sacra, 192. the Suttee, 193. the place of Willi amongst the Hindoos occupied by Adoptions, 193. — rights of the first-born son amongst the, 228. — primogeniture of Uie Hindoos in public office or political power, but not in property, 833. Hindoos, form of Ownership of Pto- perty amongst the,— the Village Com- munity, 260. D D 4 408 INDEX. HINDOOS. Hiadoos, Co-ownership, 261. — ^ simplest form of the Village Com- munity, 262, 265. — Acquisitions of Property and In- heritances, Hindoo distinction between, 281. Hobbes, his theory of the origin of law, 114. Homer, his account of the Cyclops quoted, 124. his description of an ancient law- suit, 377. Homeric poems, rudimentary jural ideas afforded by the, 2, S. Themis and Themistes, 4, 5. ■ Homeric words for Custom, 5. India, heroic and aristocratic eras of the races of, 10. laws of Menu, 6, 17, 18. Customary law of, 7. — — — stage beyond which India has not passed, 23. Inheritance a form of universal succes- sion, 177. Roman definition of an Inherit- ance, 181. ^— old Roman law of, 189. and Acquisition, Hindoo differ- ences between, 281. Injunction of the Court of Chancery, 293. Institutes of the Roman lawyers, 35. International law, modern confusion be- tween it and Jus Gentium, 53. function of the law of Nature in giving birth to modern Interna- tional Law, 96. postulates forming the foundation of International Law, 96. ^— Grotius and his successors, 96. ■ Dominion, 102. territorial Sovereignty, 103. the ante-Grotian system of the Law of Nations, 109. p.. preparation of the public mindfor the reception of the Grotian system, 1 10. . success of the treatise " De Jure Belli et Pacts,'* 111. >. points of junction between modern public law and territorial sove- reignty, 112. ■ ■ sources of the mode in case of Cap- ture in War, 46. Intestacy. See Succession, Intestate. JUS NATURALE. 'Iff^^s, the Greek principle of, 58, 61 • Italy, aristocracies of, 10. codes of, 17. — instability of society in ancient, 47. — territorial sovereignty of theprincea of, 108. Jews, WiUs of the, 197. Julianus, Salvius, the Pnetor, his Edict, 64. ■ effect of his measures on the Pne- torian Edicts, 66, Jurisconsults, early Roman, 37—39. later, 41. Natural Law of the, 76. Jurisprudence, golden age of Roman, 55. Jurists, Roman, period of, 66, 6S. Jus Gentium, origin of, 47, €t seq. circumstances of the origin of, 50. how regarded by a Roman, 51. ■ and by a modern lawyer, 51. difference between the Jus Gen- tium and the Jus^Naturale, 52, 53. point of contact between the old Jus Gentium and the Jus Na- turale, 58. difference between the Jus Gen- tium and the Quiritarian law, 5 9. — — — influence of the, on modern civili- sation, 103. Jus Feciale, or International Law of the Romans, 53. Jus Naturale, or Law of Nature, 52. — difference between the Jus Na- turale and the Jus Gentium, 53. -^— Greek conceptions of Nature and her law, 53. • — ^— point of contact between the old Jus Gentium and the Law of Nature, 58. modem history of the Law of Nature, 73. — ^ Natural law of the Roman Juris- consults, 76. ancient counterpart of Bentham- ism, 79. vastness of the influence of the Law of Nature on modern so- ciety, 80. -^— history of the Law of Nature, 80, et seg. pre-eminence given to Natural law in France, 85. INDEX. 409 JUS NATURALS. Jus Naturale, its condition at the mid- dle of the 18th century, 86. ' Rousseau, 87. the French Revolution, 89. equality of men, 92. function of the law of Nature in giving birth to modern Interna- tional Law, 96. -^— sources of the Modern Interna- national Law of Capture in War, 246. Justinian's ** Institutes" quoted, 46, — referred to, 57. " Pandects '* of, 67. — " Corpus Juris Civilis" of, 68. his modifications of the Patria Potestas, 143. ^-~> his scale of Intestate Succession, 219. Kings, origin of the doctrine of the divine right of, 346. Kingship, heroic, origin of, 9. Lacedannonian kings, authority of the, 10. Land-law of England at the present day, 226. Land and goods* English distinction between, 283. Latifundia, Roman, mode of cultivating the, 299. Law, social necessities and opinions always in advance of, 24. — — agencies by which law is brought into harmony with society, 25. ancient, 113. theories of a natural state and of a system congenial to it, 113. Grotius, Blackstone, Locke, and Hobbeft,114. theory of Montesquieu, 115. ■ Bentham, 117. dissatisfiiction with existing theo- ries, 118. ^-« proper mode of inquiry, 1 19. the Patriarchal theory, 1 22. fiction of Adoption, ISO. the archaic Family, 1 S3. the Patria Potestas of the Ro- mans, 133. ■ agnatic and cognatic relationships, 146. Guardianship of Women, 153. MORTOAOOR. Law, ancient Roman Marriage, 154. Master and Slave, 162. Leges Barbarorum, 297. Leges Comeliae of Sylla, 41, 42. Leges Julia of Augustus, 41, 42. Legis Actio Saeramenti of the Romans described, 375. Legislation, era of, 25. considered as an agent by which the adaptation of law to the social wints is carried on, 29. •«— difference between it and legal fictions, 28, 29. Lex Calpurnia de Repetundis, the first true Roman Criminal Law, 384. Lex Plietoria, purport of the, 161. Lidi of the Germans, 231. Local Contiguity as the condition of com- munity in political functions, 1 32. Locke, John, referred to, 87. his theory of the origin of law, 114. Lombards, referred to, 114. Louis Hutin, King of France, his ordi- nance quoted, 94. Mahometan Law of Succession, 242. Migority and Minority, meaning of the terms in Roman Law, 162. Mancipation, Roman, 50, 204, 278, 317. mode of giving the effect of Man- cipation to a Tradition, 279. Menus of the Ronoans, 317. Marriage, ancient Roman, 1 54. later Roman, 155. Master and Slave, 162. under the RooMns, 163. in the United Sutes, 163. Menu, Hindoo laws of» 6, 17, 18. Merovingian kings of the Franks, 104. Metayers, the> of the south of Europe, 301. " Moniteur,** the, during the period of the French Revolution, 92. Monte«quieu*s *' Esprit des Lois,** re- marks on, 86. ■ his Theory of Jurisprudence, 115. Apologue of Montesquieu con- cerning the Troglodytes, in the '* Lettres Persanes,*' 311. Moral doctrines, early, 127. Mortgagor, special proprietorship cre- ated by Uie Court of Chancery for the. 294. 410 tKDEX. MOttS. Moses, tettsmentary p6w«r not proTtde^ for by the Laws of, 197. Naples, territotifll satereignty of the monarehs o^ 108. Nations, Law o^ 96, ei teq. See Inter- national law and Jus Ghentium. Nature and her law, Greek conceptions of, 59. Nexum of the ancient Romanft, 48, 315. ■ changes in the, 5t8. Normandy, ctistoms of, referred to, 151. N^/Aor, the word not known to the Ho- meric poems, 5. Nuneupatio, of the Romans, 205. Obligations of the Rovnan law, 393, rights and duties of, SS4. Occnpatio, or Occupancy, of the RoMan Law, a ** natural mode of aequiring property," 245, 250. -— — things which never had an owner, 245. ■ things which have not an owner,245. Capture in war, 246. - Discovery, 248. ■ objections to the popular theory of Occupancy, 256. Ordinance of Louis Hutin quoted, 94. Orphans, GuardianAip of male, under the Roman law, 160. Pactes de Famille of France, 2S2. Pascal, his ** Lettres Plivvineiales,'* S52. Paterfkmilias in elementary communi- ties, 234, 235. Patria Potestas, the, of the Romans, 133. of the Galatse, 136. of the Greeks, 136, 137. causes which helped to mitigate the stringency of the fiither*s power over the persons of his children, 141. ■ liabilities of the Paterfamilias, 145. —^ unity of person between the Paterfa- milias and the. Filiusfiimilias, 1 45. rights and duties of the Paterfami- lias, 145, 146,234,235. ^ the Patria Potestas not a durable institution, 146. Patriarchal theory of primeval Jurispru- dence, 122. - chief points from Scriptural ac- counts, 123. — ~- Homer*8 account of the Cyclops, 1 84. fRIHOOSMtTlTtffi. Pays du Droit fecrit and Paysdu t)to\t Coutumier, di'flRMrence between the 84. Peculium^ the, olTtlie Romans, 142. Castrense FecuKum, 142. ' Quasiwcairtrense Peculium, t4S. Penal law in ancient codes^ 867. Peijury, how pumsbed by the ancient Romans, 893. Persian monarchy, heroic and aristocra- tic eras of the races composing the, 11. Persians, the ancient, their veracity, 308. ^6ais of the Greeks, meaning of the, 53. Plebeian Wills of tlie Romans 201. — ^ legalised by at' the Twelve Tables, 202. their influence on the civilisation of the modem world, 203. Political ideas, early, 128. foundation of aristocracies, 1 f)2. Political Economy and Contract, 305. Polygamy, its influence on Primogeni- ture, 243. Possessory interdicts of the Roman law, 291. PrsBtor, origin of the office of, 6SL -— — Edict of the, 41, 57, 63, 66. the Roman, compared with an En- gti^ Chancellor, 64, 65. restraints on the Pnetor, 65* ■ tke Prtttor the chief equity ^udge as well as the great common law magistrate^ 67. Pnetor Peregrinus, office of the, 63. Praetorian Edict of the Romans, 41, 57, 65, 66. the Edictum Perpetuum, 63, that of Salvius Juliaaua, 64^ 66. — remedies given by the, 293. Praetorian Will, the, 209. described, 210. Prescription of IVoperty, history of, 284, etMeq. Primogeniture, changes in Law of Boe- cession, caused by, 225. almost destroyed by the authors of the French code, 225, 226. results of the French system, 226. rights of the flrst-born son amongst the Hindoos, 288. early history of Primogeniture, 229. Benefices, 229. IKDfiX. 411 PR13I0OENITURE. Primogeniture, gradual tramfofVnitlMi of Bene6ce9 into liereditary Fitefa, 230. •-— die Pactec de FamiHe of France and the U«u8«'OesetM of Ger- many, 239. -^— oauaes of the diiMoa of Frimo- ffeniture^ SS3. ■ PrimogenitQre in publit 4>ffice8 or politieal power amongst the Hindoos, but not in property, SSSw aneicnt Ibrms of Primogeniture, 835. ■ ■ ■ why did Primogenitare gradually supersede every other principle of Succession ? S35. — earlier and later FHmogetixtnre, 257. Hindoo rule of the eldest son and of the eldest line also^ 239. Celtic form of Primogeniture, 240. ' Mahometan form, 242. influence of polygamy on Primo- geniture, 243. Progress, causes of the arrest of, of the greater part of mankind, 77. Property, early history of, 244. ** natural modes*' of acquisition, 244. — Occupancy, 245. Capture in War, 246. — ^* rule of Discovery, 248. ^— history of the origin of property, 250. ■ Blackstone cm the theory of Oecu* pancy as the origin of property, 251. » aphorism of Savigny on the origin of property, 254. objections to the popular theory of Occupancy, 256. -^■^ Co-ownership amongst theHindoos, 260. — the Oens, or House, of the Ra- mans compared with the Village Community of India, 264. — » Russian village co ownership, 266. -^-~ Croatian and Sclavonian Laws re- specting the property of Fami- lies, 269. ■ ancient diflieulttea of Alienation, 271. ^-— natural classification of property, 273. QUJISTIOKSS l^SPEtU^. Property, ancient modes of transfer of property, 276. — — definition of the Res Manciple, 277. «-*^« traditioti of property, 578. distinction between Res Mancipi and Res nee Mancipi, 279. ■ Hindoo law of Inheritanoes and Acquisitions, 881, 282. — law of moveables and law of land, according to the French Codes, 283. and in England, 283. Usacapion, or Prescription, 284. — » Cessio in Jure, or recovery, in a Court of Law, of property sought to be conveyed, 289. — ^* inflaence of Courts of T^aw atid of their procedure upon Property, 290. — distinction between Property and Possession, 290. and between Law and Equity in their conceptions of proprietary right, under the Roman and English Law, 293. feudal view of Ownership, 295. ^— Roman and barbarian law of Own- ership, 296. —^ Roman system of Tenancy, 299. the Coloni of the Romans and the Meuycrs of the South of Eu- rope, 300, SOI. rights of the Emphyteuta, 301. •>— the Agri Limitrophi of the Rhine and the Danube, 302. Proscriptions, Roman, origin of the, 389. Pupilage or Wardship in modem juris* prudence, 162. ■ compared with the Guardianship of Orphans under the Roman Law, 162. Qussi-Contract, 343. meaning of, in Roman law, 344. Quasi, meaning of the word, in Roman law, 344. Qucstores Parricidii of the ancient Ro-> mans, 383. Qucstiones PeipetuB of the Romans, 384. theory of the Qusestiones, 386. results traceable to the QusBStiones, 391. 412 INDEX. QUERELA mOFFICIOSI. Querela InoflSciosi Testamenti of the old Roman law, 215. Quiritarian Law, the, 48. — principles of the, 59. difference between it and the Jua Gentium, 59. Recoveries, collusive, of property in the Roman and English Law, 289. Regency, form of, according to the French custom regulating the suc- cession to the throne, 240. Reipus, the, of Germany, 281. Res Mancipi and Res nee Maneipi, 274, 279. definition of the Res Mancipi, 277. Res nullius of the Roman Law, 246. Responsa Prudentium of the Romans, described, 33. — — similarity between them and Eng- lish Case-law, 33. « decline and eitinction of the Re- sponses, 40, 41. Revolution, French, effects of the theory of the state of Nature on the, 91. Rex Sacrorum, or /2ex&zcrt/?ci(/t», office of the, 10, 62. Roman law, I. the Twelve Tables, 1, 2, 1 4, 33. — — influence of the taera on the law of Adoption and of Wills, 6, 7. — class of codes to which the Roman code belongs, 1 5. — ^ probable assistance afforded by Greeks, 15. ■ meaning of Jiclio, 25. — instances of Jictione^ cited, 26. ■ the Responsa Prudentium de- scribed, 33. judicial functions of the Magis- trates of Republican Rome, 36. reasons why the Roman law was not popularised, 36. sources of the characteristic excel- lence of the Roman law, 38. •^— decline and extinction of the Re- sponses, 40, 41. .— ^ the Prstorian Edict, 4 1 , 57, 63, 66, — the Leges Cornelias, 41, 42. — -— later jurisconsults, 41 . — remarks on the Statute Law of the Romans, 41 — 43. ■ and on the Equity of the Romans, 44, 45. nOHAN LAW« Roman law, golden age of Roman jurisprudence, 5S, — Roman Equity, 58, 67. features cooSmon to both English and Roman Equity, 68, et Mq. — — International law largely indebted to Roman law, 97. — ^ the Patria Potestas of the Roman law, 137, ef Meg, Agnatic and Cognatic Relation- ship, 146. Perpetual Tutelage of Women,! 53. Roman Marriage, 154, 155. Guardianship of male Orphans, 1 60. Law of Persons, — Master and Slave, 162. ^— Testamentary Law, 172, «f Meq. «— — Wills ancienUy executed in the Co- mitta Calata, 199, 201. ■ ancient Roman law of Inte&tate Succession, 199. — « Roman Wills described, 201 . the Mancipation, 204. — « the Nuncupatio, 205. the Pnetorian Will, 209. — first appearance of Sealing in the history of jurisprudence as a mode of authentication, 210. Querela Inofficiosi Testamenti ,2 15. Disinherison of Children under, 215. Intestate Succession under, 2 1 8. Fidei-Commissa, or bequests in trust, 223. rights of Co-heirs, 227. — Occupancy, 245. Roman distinction between the Law of Persons and the Law of Things, 258. influence of Roman classifications, 259. Co-ownership of property regarded by the mature Roman law as exceptional and momentary, 261. the Gens of the Romans compared with an Indian Village Commu- nity, 264. —— Res Mancipi, and Res nee Man* cipi, 274, 277. Mancipation, 278. Usucapion, or Prescription, 284. the Cessio in Jure, 289. — distinction between Property and Possession, 290. IND£X. 413 ROMAN LAW. Roman law, Roman and barbarian law, 296L ' Roman Contracts, S14, et teq, the Four Contracts, 325. ^— connection between Theology and Roman law, 355, — *- causes of improyement in Roman law, 361. ■ Roman law in the Eastern Em- pire, 363. ^-^ Ciyil Wrongs of the Roman law, S7a — the Legis Actio Sacramenti, 375. old Roman Criminal Jurispru- dence, 382. extreme multiplicity of Roman criminal tribunals, 390. — results traceable to the Qusm- tiones, 391. Romans causes of the rspid prepress of the Stoical philosophy amongst the, 55. their progress in legal improve- ment, 57. Rome, immigration of foreigners into, 46, 47. exclusion of, under the early Re- public, 46. ■ See of, origin of the tendency to attribute secular superiority to the, 108. — decline of ecclesiastical influence in international questions, 110. early political ideas of, 130. Rousseau, J. J., influence of hit writ> ings, 87. his doctrine of an original Social Compact, 308, 309. Russian Tillages, Co-ownership of the occupiers o^ 266. Sacra, or Family Rites, of the Romans, 6, 7, 27, 191, 192. of the Hindoos, 192. Sacramental Action of the ancient Ro- mans, 48. Salic law, origin of the, 1 57. Satigny, on Possesaion and Property, 290,291. — ^* his aphorism on the origin of property, 254. Sca^Tola, Q. Mucins, his Manual of the Civil Law, 40, 41. Seandinavian nations, their laws respect- ing the Perpetual Tutelage of Wo- men, 153, 159. dOVEREIOK. SclaTonian laws respecting the property of families, 268. Sealing, first appearance of, in jurispru- dence, as a mode of authentication, 210. Sin, mortal and yenial, casuistical dis- tinction between, 351. Sins known to primitiye jurisprudence, 371. Slavery, ancient, 162. — under the Romans, 163. ■ in the United States of America, 163. Socage, English law of, 232. Social Compact, Rousseau's doctrine of an original, 308, 309, 345. Dr. Whewell quoted, 347. Societies, stationary and progressive , 92, ■ difference between stationary and progressive societies, 23. agencies by which Law is brought into harmony with Progressive Societies, 25. — perils of early, 75. primitive, 120. -.— early moral doctrines, 127. — early political ideas, 128. fiction of Adoption, 130. foundation of Aristocracies, 132. principle of I^iocal Contiguity, 132. ■ the ancient Family, 153. the Patria Potestas, 133. ^— agnatic and cognatic relationships, 146. — — Guardianship of Women, 153. ancient Roman Marriage, 154. — ^ Master and Slave, 162. ^— uniformity of movement of the progressive societies, 168. — ^ disintegration of the Family, 169. — — — movement of societies firom status to contract, 170. Universal Suceesaion, 1 77, 1 79, 1 81. primitive society and universal succession, 183. — the ancient fiimily a corporation, 1 84. Society in primitive times not a collec- tion of individuals, but an aggregation of families, 126. Solon, Attic code of, 16. ** Sephismes Anarchiques " of Dumont, remarks on, 92. Sovereign, origin of the doctrine that the monarch is the fountain of justice, 396. 414 INDEX. SQWUIONTr. Severwgnt^, tcrrUori*]^ ptopoiitioii of InternaUonal Law oii» |0% t08. ■ Trib9*ioveraiga|y, 1— Wills of the ancient Germany 196. •«— Jewish and Bengalee Wills, 1 97. ■ mode of execution of anoiesit Ro- man wills, 199. ■■ ' description (^ancient Roman Wills^ SOI. — — o influence of ancient Plebeian Willa o9 the civilisation of the modem world, 803. •— ^ the Idanoipation, 804. — — — relation-of Wills to oonveyances. 804. — the Testament per as ef /tbrom, 804, 813, SU. — — consequence of this relation of Tes- taments to cooveyancesi 906*. — remedies, 807. ancient Wills not written, 807. »— remarks on the expression Emptor FamilisB, 808. the Prstorian Will, 809. I the Bonorum Fossessio and the Bonorum Possessor, 811. improvements in the old Will, 318, 813. -*— ancient and modem ideas respect- ing Wills and successors, 815. — ^* Disinherison of Children, 815. the age of Wills coeval with that of feudalism, 884. introduction of the principle of Dower, 884« — ^ rights of Heirs and Co-heirs under the Roman law, 887. Intestate^ 195. ■ ancient Roman law